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DEOPS 



FROM 

99 



"The Poison Fountain. 

FACTS THAT ARE STRANGER THAN FICTION. 



The Question Answered as to who owns the Child, its own Father 
and Mother, or their Neighbors. Tom, Dick and Harry. 



A BLOW FOR THE INALIENABLE RIGHTS OF THE FAMILY, AS AGAINST THE 
MONSTROUS USURPATIONS OF THE STATE. 



By ZACH. MONTGOMERY, 

Of (he California Bar. 



READ FIRST AND CONDEMN AFTERWARDS. 



Copies of this Pamphlet will be sent Postage paid to any part 

of the United States for the following prices in advance, 

either in Money filers, or C/t,rre>ie// by Registered 

Letter addressed to J. J. Montgomery, 

Oaklaiid, Col., Box %83: 

1 Copy, 10 Cents ; 10 Copies, 90 Cra.; 100 Copies, $S: 500 Corres, $35 ; 

1000 Copies, !$l>2.50. 



Individuals or Associations desiring this Pamphlet for free distribution, will 

he supplied for §50 per 1000 with cost of freight 

or postage added. 



OAKLAND, CAL. 

187!). 



The Poison Fountain 

AND ITS CRITICS. 



The " Poison Fountain" complete, first published in 1878, neatly bound, 
consisting of 201 pages, of wliieh this pamphlet embraces only the first part, 
can be had at A. L. Bancroft and Co.'s, Michael Flood's, and such other book- 
sellers as may apply for the book. The second part of this work consists, for 
the most part, of discussions between the author and many of the ablest defenders 
of the New England public school system. 

The following are short extracts from a few of the very many complimen- 
tary notices the "Poison Fountain" has received from eminent CATHOLIC, 
Protestant, and non-religious sources : — 

Rt. Rev. E. O'Connell, R. C. Bishop of Grass Valley, California, speaking 
of " Poison Fountain," says: " I only wish that every American citizen inter- 
ested for the welfare of his country, and all parents whom God has blessed with 
children, would read it attentively. Your arguments in behalf of the rights of 
parents to control the education of their children, are, in my opinion, unanswer- 
able." 

Ex-Governor Peter H. Burnett, R. C. , concluded a notice of the book by 
saying, "It is one of the most conclusive arguments I have ever read upon any 
disputed subject." 

Dr. John LeConte, President of California State University (Protestant), 
after reading " Poison Fountain," in a letter to the author, among other things, 
says : " There can be no doubt that the gradual impairment and loss of parental 
authority and influence is one of the most serious and momentous evils which 
besets the American civilization. It tmdermines the, very foundations of the 
family — the essential unit of society." 

Dr. Joseph LeConte, one of the most eminent professors of the State Uni- 
versity (Protestant), in writing to the author, says: " I fully concur with you in 
vour view that any education which weakens the family tie, strikes at the very 
foundation of society, and no amount of good in other directions can atone for 
this greatest of all evils. I fully concur with you also in your opposition to com- 
pulsory State Education. This certainly strikes at the integrity of the family, 
for it makes children ' the wards of the State.' I fully believe, also, that pri- 
vate schools, each parent choosing his own, furnish a better education, all things 
considered, than any public school system." 

Rev. Dr. W. H. Piatt (Protestant), of San Francisco, speaking of " Poison 
Fountain," says: " Its array of facts and its irrefragible logic cannot fail to do 
good." 

Mr. A. Adams, of Los Angeles (Protestant), writing to the author, says: 
"I am struck with the similarity of our views on the school question, and bid 
you Godspeed in propagating your views as contained in the publication before 
me. I see that you, a Catholic, and T, a Protestant, are united here." 

Dr. Thomas W. Dawson, of Downey City (non-r jligionist), concludes a 
letter to the author, as follows : " I honestly believe that your array of facts and 
reasoning are simply unanswerable." 



PART FIRST. 



THE POISON FOUNTAIN 

OB, 

ANTI-PARENTAL EDUCATION. 



CHAPTEB I. 

Tlie writer intends to offer no apology to the reading coram a- 
aity for the publication of this book. As soon would he think 
of apologizing to the slumbering inhabitants of a city in 
flames, for attempting to disturb their rest by the vigorous 
ringing of a fire-bell. Far better that they awake even in 
anger, than to awake not at all. 

If the reader will but follow us, even to the extent of a few 
pages, wo promise to demonstrate, by incontestable facts and 
figures drawn from sources which will not and cannot be im- 
peached, that the calamity at which we are endeavoring to 
alarm our countrymen, is far more wide spread and direful in 
its consequences than any conflagration that ever devastated a 
city. We promise to prove that our boasted New England 
public school system, as now by law established throughout 
the length and breadth of the American Eepublic, is a poison- 
ous fountain, fraught with the seeds of human misery and 
moral death. But, says the reader, how can that possibly be 
true? Can it be denied that an educated people are more 
moral and virtuous, more contented, happy and law-abiding 
than an ignorant people, and if so, how can it be charged that 
a system of education which almost entirely banishes illiter- 
acy from the land, is fraught with so much evil to those who 
are brought under its influence ? These are candid questions, 
and they shall receive candid answers. It is very true that 
ignorance is the mother of vice. It is also true that an 
educated people, if properly educated, are more moral, virtu- 



2 The Poison Fountain, oit 

oils, contented, happy and law-abiding than an ignorant 
people. 

Thus far, we think there can be no difference of opinion 
between the most inveterate supporter of the New England 
public school system and ourselves. 

Now, keeping steadily in view this common standpoint, name- 
ly, that a people properly educated are more moral, viitucus, 
contented, happy and law-abiding than an ignorant people, 
let us suppose that we somewhere find living, side by side, twc 
communities, one of which is made up almost entirely of edu- 
cated people, while the other is largely composed of illiterate 
people; and let us further suppose that amongst those consid- 
ered educated you find that in proportion to their population 
they have six criminals to where the more illiterate community 
have but one ; suppose that they have nearly two paupers to 
where the more illiterate people have but one; suppose that 
they have two insane to where the illiterates have only one; 
suppose that their death list shows four suicides to where that 
of the illiterates shows but one, and suppose that the same list 
shows three deaths from the criminal indulgence of the brutal 
passions, while that of the illiterates shows but two, what con- 
clusion would you arrive at with reference to that kind of edu- 
cation? 

Adhering to the proposition with which we set out a moment 
ago, namely, that a people -properly educated are more moral, 
virtuous, contented, happy and law-abiding than an uneducated 
people, would you not be forced to the conclusion that there 
must be something wrong, terribly, radically wrong, in a system 
of education so much more direful in its results than even 
illiteracy itself? 

But just here, perhaps, the reader will ask us, as he has a 
right to ask, "what application has your supposed case to the 
question under discussion ?" Just have a little patience, good 
reader, and you shall see the application 

For this educated community, let us take the native born 
white population of the six New England States, to-wit : Massa- 
chusetts, Maine, New Hampshire, Vermont, Connecticut and 
Rhode Island, and for the unlettered community, we will take 
the native born whites ot the six States of Virginia, Maryland, 
Delaware, Georgia, North Carolina and South Carolina. It will 
be observed that the States thus enumerated are either a part of 



Anti-Parental Education. 3 

the original thirteen, or such as have been carved out there- 
from. 

Both of these communities started on their career of exis- 
tence about the same time ; both were composed mainly of 
people from the same part of Europe; people who spoke the 
same language and had been accustomed to the same laws, 
manners and usages; people who possessed the same Christian 
religion, pretty much all of whom (outside of little Maryland) 
were of the protestant faith, and took as their religious ■ guide 
the same bible and even the same translation of that bible. 

There was one important particular, however, in which these 
two communities widely differed at the very start, as we shall 
presently see. 

"More than two hundred years ago the principle was incor- 
' 'porated into the legislation of Massachusetts, that the ivJiole 
' 'people must be educated to a certain degree at the public ex- 
"pense, irrespective of any social distinctions." (A) 

Again, "In Massachusetts, by statute, in 1647 each town con- 
sisting of fifty householders was directed to maintain a 
"school to teach their children to read and write, and every 
"town of one hundred families was to maintain a grammar 
"school to fit youth for the college. The common schools of 
"Massachusetts have" been kept up to this day by direct tax 
' 'and individual subscription, and nowhere in a population of 
"equal extent has common elementary education been more 
"universally diffused." (1) 

"The compulsory system of supporting common and gram- 
' 'mar schools in each town is sustained, to this day, in Massa- 
chusetts, and enforced by indictment. (2) 

At a very early day, after their settlement, a similar system 
of education was adopted in all the other New England States, 
from which fact the system seems to have taken the name of 
"the New England system." Chancellor Kent says : "In New 
"England it has been a steady and governing principle from 
"the very foundation of the colonies, that it was the right and 
"duty of the government to provide, by means of fair and just 

Note A — See work entitled "The Daily Public School," published by J. B. Lippiucott in 
18G6, p 121. See Kent's Commentaries, vol. 2, p 210. 

(1) See 2d Kent, 210-211. 

(2) Commonwealth vs. Inhabitants of Dedham, 16 Mass. U., p 111. 



4 The Poison Fountain, oe 

"taxation, for the instruction of all the youth in the elements 
"of learning." (1) 

On the other hand, the six enumerated States, comprising 
what we have agreed to call the unlettered community, steadily 
resisted the New England system up to a very recent date. 

Virginia, which occupies about the same relation to the 
latter community that Massachusetts does to the former, 
according to Lippincott's Gazetteer of the World, published 
in 1856, had at that time "no general free school system, but 
"made an appropriation for the instruction of the poor." (2) 

Thus these two communities, the one icitli its New England 
public school system and the other without it, traveled along, 
side by side, for about two hundred years, until A. D. 1860, 
when the eighth United States decennial census was taken, and 
the following was the showing of these two communities, as 
will appear by reference to the annexed table No. 1. We 
find that at the date referred to, to-wit : 1860, Massachusetts 
and her five New England sisters had 2,665,945 native born 
white inhabitants, and out of these only 8, 543 adults who could 
not read nor write, while Virginia, with her five sisters num- 
bered 3,181,969 native born whites, of whom 262,802 adults 
could neither read nor write. So that in the six New England 
States the proportion of illiterate native whites was only one to 
every 312, while Virginia and her five sisters counted one illit- 
erate to every 12. But mark you! how stand the criminal 
lists ? Massachusetts and her five sisters, out of her native 
white population of a little more than two and a half millions, 
had on the 1st of June, 1860, just 2,459 criminals in prison, 
while Virginia and her five comparatively unlettered compan- 
ions, with a native white population of over three millions, had 
but 477 in prison. That is to say, those educated under the 
New England system had one native born white criminal to 
every 1,084 native white inhabitants, while those who had gen- 
erally rejected that system had but one prisoner to every 6,670, 
being a disproportion, according to the whole number of native 
whites, ot more than six criminals in New England to one in 

(1) See 2d Kent, 210. 

(2) See Lippincott's "Gazetteer of the World,"~putliBhed in 1856, p 2049. 



Anti-Parental Education. 5 

the other community . (B). A glance at the same table will 
show that the natives educated under the New England system 
had one pauper to every 178, while those who had managed to 
live without that luxury had but one pauper to every 345. 

Of those who in one year had died by suicide, New England 
had one to every 13,285 of the entire population, while Virginia 
and her five sisters had but one suicide to every 56,584, and of 
those who perished, the victims of their criminal lusts, New 
England had one to every 84, 737, while her neighbors, that had 
never enjoyed her educational advantages, had but one such 
victim to every 128,729. We have not before us the list of 
insane in the several States for 1860, so we borrow from the 
report furnished by the Census Marshal of 1870, where it 
appears that the New England system produced (of those born 
and living in their native States respectively) one insane person 
to every 800 native born inhabitants, while the rejection of that 
system resulted in one iusane to 1,682 native inhabitants. 

Note B — The proportion is ascertained by simply dividing the whole number of native 
white inhabitants by the whole number of native white criminals. We omit the fractions in 
both cases. Great care has been taken to avoid mistakes in these computations, but should 
any inaeuracy be discovered, the author will take it as a favor to be informed of the fact, so 
that it may be corrected in futuro editions. 



The Poison Fountain, or 



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rHOH*t^©'*©rHXCO©^CM©Cft©CO»OC^eOrHCOUO-OcMrH»OlO©COrHU500COrH 

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Anti-Parental Education. 



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The Poison Fountain, or 



TABLE 5—1870. 

In 1870, the several States and Territories, of the United States, not counts 
ing Mississippi, Texas and Utah, supported 183,198 public school teachers, 
educated G, 228,060 public school pupils, at an expense of $64,030,073. (See 
compendium of Ninth Census of the U.S., Page 488.) The following table 
is compiled from the above source. 



STATES. 



Alabama 

Arkansas. .,<.... 

California 

Connecticut 

Delaware 

Florida , 

Georgia 

Illinois 

Indiana 

Iowa 

Kansas 

Kentucky 

Louisiana 

Maine 

Maryland 

Massachusetts. . . 

Michigan 

MiDnesota 

Mississippi 

Missouri 

Nebraska 

Nevada 

New Hampshire. 

New Jersey 

New York 

North Carolina.. 

Ohio 

Oregon 

Pennsylvania— . . 

Ehode Island 

South Carolina. . 

Tennessee 

Texas 

Vermont 

Virginia 

West Virginia. .. 
Wisconsin 



• oo p a> a 

: &<£ B B I 
: 2 ~£-p 3 



67,263 

72,045 

75,527 

88,449 

16,835 

10,132 

11,150 

677,623 

446,066 

205,923 

58,030 

218,340 

25,832 

152,765 

83,226 

242,145 

254,738 

103,408 



320,313 

15,052 

1,856 

59,408 

80,105 

719,181 
41,912 

737,693 
29,822 

745,734 
27,250 
31,362 
82,970 



52,067 

8,700 

101,493 

337.008 



h3 
V fciri o 

o° ~ 2 £L 

: cTo-p 

; o * o 

• m%j ° 
: e*B 



( 629,626 

552,461 
1,027,733 
1,426,846 

127,729 
76,389 

175,844 
7,810,265 
2,063,599 
3,245,352 

660,635 
1,150,457 

473,707 

843,435 
1,146,057 
3,207,826 
2,164,489 

895,204 



3,092,733 

182,100 

81,273 

403,310 

1,562,573 

8,912,024 
205,131 

8,528,145 
139,387 

7,292,946 
355,582 
279,723 
683,008 



516,702 

98,770 

599,811 

2,209,384 



»d o 



5 9 36 

7 66 
21 55 
16 13 

7 58 

7 53 
15 77 
11 52 

4 62 
15 75 
11 37 

5 26 
18 33 

5 52 
13 77 
13 24 

8 49 
8 65 



9 65 
12 10 
43 78 

6 78 
19 56 

12 38 
4 89 

11 56 
4 67 
9 77 

13 04 
8 90 
8 23 



9 92 
11 35 

5 90 

6 55 



Anti-Parental Education. 11 

One very noticeable fact in this connection, as shown by the 
sregoing tables, is that in the State of Massachusetts, which 
lairns the honor of being the founder of the New England / 
ystem of education, while she had by far the smallest propor- 
.on of illiterate native born adults of any, even of the New 
fogland States, had at the same time much the largest propor- I 
on of native white criminals, she having one criminal to every ' 
49 native white inhabitants. 

The nearest approach to her was the showing made by the 
tate of Connecticut, where there was one native white crimi- 
al to every 845 native white inhabitants. 

And now, good reader, if you will take the pains to turn to 
le sixth column of figures in table three, which shows the 
dative proportion of native born white criminals in every 
tate in the Union in 1860, you will see that Massachusetts 
ands solitary and alone in the grand and magnificent propor- 
ons of her criminal list. California at that time came next 
i her chosen model, having one native born white criminal to 
rery 697 native whites, while Massachusetts had one to everv 
19. J 

California seems to have resolved, however, not to be sur- 
ged in her crime list even by her great exemplar, for when 
[e next decennial census reports were returned, to-wit : in 
170, California made a showing of one native white criminal to 
ery 512 native white inhabitants, thus carrying off the palm 
hich ten years before had been awarded to the old State of 
Massachusetts. 

In view of the foregoing facts and figures, is it any wonder 
at the Boston correspondent of the San Francisco Morning 
ill tells us "that a large number of public school men have 
j;ome to the conclusion that the public school system of that 
nty is a failure?" (A). Or is it surprising that another of 
Lr leading dailies, the Alta California, speaking editorially of 
e same system as it exists in this State, calls it "our ana- 
nda," and declares that if we are to "judge this system by its 
ipparent fruits, we shall have to pronounce it not only a mel- 
ancholy, but a most disastrous failure, and that it will be 
die to look for the cause of the general rowdyism, idleness 

ons ,4— See Morning Call of August 5th, 1877. 



12 The Poison Fountain, oe 

• 'and viciousness of the rising generation anywhere but in the 
"training which it has been receiving?" (0.) 

Even after the civil war, which raged with such terrible fury 
over the Southern and Southwestern States, during the years 
from 1861 tD 1865, whereby thousands of millions of dollars 
worth of property was destroyed, a servile race were emanci- 
pated and the very foundations of the whole social and politi- 
cal fabric upheaved and broken to atoms — even after all the 
bad government which bad white men and bad black men had 
succeeded in forcing upon the subjugated States — still, when 
the census reports for 1870 were published, they showed that 
neither their native white criminals nor paupers counted in the 
proportion even of so much as one, to where those counted two, 
who had been for two hundred years subjected to the ravages 
of the New England public school system. (See table No. 2.) 

And this precious system of education is the great boon for 
which in 1870 the American people were paying to the tune of 
$64,030,673, while at the same time they were grinding through 1 
f this mill of moral death no less than 6,228,060 children. In 
order to maintain this very same system, California alone 
expended during the last fiscal year no less than $2,749,729 16, 
as appears from the recently published biennial report of the 
State Superintendent of Public Instruction. 

r- Indeed, so infatuated has our young State become with this 
crime and pauper-breeding system of public instruction, that 
she has made it a penal offense for the parent or guardian of 
any child between the ages of 8 and 14 years to keep such 
child from the nublic school, even for the sake of sending it to 
a far better private school of his own choice, and at his own i 
expense, unless he first seeks and obtains the gracious permis- 
I sion of the School Directors so to do. 

But lest the reader should be disposed to doubt the existence 
of so tyrannical a statute, here it is as enacted by the California 
Legislature on the 28th day of March, 1874 : 

"Section 1. Every parent, guardian or other person in the 
State of California, having control and charge of any child or 
children between the ages of 8 and 14 years, shall be required 
to send any such child or children to a public school for a 
period of at least two-thirds of the time during which a public 

Note C—Alta editorial, January 31st, 1872. 



Anti-Parental Education. 13 

school shall be taught in each city and county, or school dis- 
trict, in each school year, commencing on the first day of July, 
in the year of our Lord, one thousand eight hundred and sev- 
enty-four, at least twelve weeks of which shall be consecutive, 
unless such child or children are excused from such attendance 
by the Board of Education of the city, or city and county, or 
of the Trustees of the school district in which such parents, 
guardians or other persons reside, upon its being shown to their 
satisfaction that his or her bodily or mental condition has been 
swell as to prevent attendance at school, or application to study 
for the period required, or that the parents or guardians are 
extremely poor or sick, or that such child or children are 
taught in a private school or at home in such branches as are 
usually taught in the primary schools of this State, or have 
already acquired a good knowledge of such branches; provided, 
in case a public school shall not be taught for three months 
during the year, within one mile by the nearest traveled road of 
any person within the school district, he shall not be liable to 
the provisions of this Act. 

' 'Section 3. In case any parent, guardian or other person 
shall fail to comply with the provisions of this Act, said parent, 
guardian or other person, shall be deemed guilty of a misde- 
meanor, and shall be liable to a fine of not more than twenty 
dollars; and for the second and each subsequent offense, the fine 
shall hot be less than twenty dollars nor more than fifty dollars, 
and the parent, guardian or other person so convicted, shall 
pay all costs. Each such fine shall be paid to the Clerk of tho 
proper Board of Education or of the District Trustees." >-*i 

Thus it is that the votaries of this system have absolutely! 
undertaken, by the most tyrannical legislation, to strip every 
parent of the guardianship ol his children and to transfer their I 
entire control to an irresponsible Board of School Trustees ; scf? 
that if these School Directors choose to appoint a libertine or 
a harlot as the tutor of your daughters, and at the same time 
refuse their gracious permission for you to send them to a pri- i 
vate school of your own choice, it is with fines or prison dungeons 
that the law proposes to reward you, should you, in obedience 
to the dictates of right reason and your own conscience, seek to 
shield them from the contaminating touch of a vile teacher. 
Is it any wonder that vice flourishes or that virtue perishes 
under the influence of such a system ? 



14 The Poison Fountain, or 

CHAPTEE II. 

WHEREIN THE NEW ENGLAND PUBLIC SCHOOL SYSTEM IS RADICALLY 

WRONG. 

Every standard writer on the subject of either law or morals, 
proclaims with one voice that parents are bound by the natural 
law to feed, clothe and educate their own children, Bouvier 
says, ' 'The principal obligations which parents owe their chil- 
' 'dren are their maintenance, their protection and their educa- 
tion." (1). Chancellor Kent says, "The duties of parents 
' 'to their children as being their natural guardians, consist in 
"maintaining and educating them during the season of infancy 
"and youth." (2) 

Sir William Blackstone says, "The last duty of parents to 
"their children is that of giving them an education suitable to 
" their station in life ; a duty pointed out by reason and of far 
"the greatest importance of any. For," continues that author, 
' 'as Puffendorf very well observes, 'it is not easy to imagine or 
"allow, that a parent has conferred any considerable benefit 
"upon his child by bringing him into the world, if he after- 
"wards entirely neglects his culture and education, and suffers 
' 'him to grow up like a mere beast, to lead a life useless to 
"others and shameful to himself.'" (a). Dr. Wayland, in his 
elements of moral science, says : ' ' The duty of parents is gen- 
erally to educate or to bring up their children in such manner 
"as they believe will be most for their future happiness, both 
"temporal and eternal." (3) Again "he (the parent) is 
"bound to inform himself of the peculiar habits, and reflect 
' 'upon the probable future situation of his child, and deliber- 
' 'ately to consider what sort of education will most conduce to 
"his future happiness and usefulness," (4). Again, "The 
"duties of a parent are established by God, and God requires 
"us not to violate them." (5.) According to tho laws of 
nature, says Wayland, "the teacher is only the agent, tho 
parent is the principal." (6.) But, under the New England 



(1) Bouvier's Institutes, vol. 2, p 118. 

(2) 2d Kent, 19G. 

(a) Cooley's Blackstone, vol. 1, p 449. 

(3) Waylands' Elements of Moral Scionce, 314. 

(4) Wayland's Moral Science, 316. 

(5) Wayland 321. 
(G) Wayland, 316. 



Anti-Parental Education. 15 

system, as by law established, the parent is not recognized as 
the principal, nor is the teacher regarded as his agent. The 
Legislature of California has gone so far towards elevating the 
teacher above the parents, as to make it a penal offense for any 
parent to even insult the teacher of a public school in the 
presence of his pupils, no difference what the provocation may 
be. 

Section 654, of the Penal Code of this State, reads, "Every 
parent, guardian or other person, * who upbraids, insults or 
abuses any teacher of the public schools, in the presence or 
hearing of a pupil thereof, is guilty of a misdemeanor." 

If the teacher insults the parent, in the presence of his chil- 
dren, there is no penalty to pay, or if the dirtiest loafer in the 
land insults the teacher of a private school, without the least 
cause or provocation, that is all right ; but woe be to the father 
or mother, who has the temerity to breathe one offensive word 
against the teacher of a public school, in the hearing of his 
pupils, even should it be to chide him for his immoral conduct 
towards the child of the offender. 

In his biennial report for 1864, our State Superintendent of 
Public Instruction — quoting from the judicial decisions of 
some of the Eastern States, construing their public school 
laws, which are, in all respects similar to our own — maintains 
the proposition that "the child should be taught to consider his 
"instructor, in many respects, superior to the parent in point of 
"autlwrity," and "tliat the vulgar impression that parents have 
"a legal right to dictate to teachers is entirely erroneous," and 
further that "parents have no remedy as against (lie teazlier." (1) 
In the State of Vermont, in 1874, a School Committee expelled 
from a public school certain children because of their absence 
from school on a religious holiday, although they had remained 
absent in obedience to the commands of their parents; and 
this, too, was after the school authorities had been appealed 
to, in vain, for leave of absence. This action of the School 
Committee was afterwards sustained by the Supreme Court of 
the State, which based its decision, in part, at least, on the 
ground that "no divine authority had, been quoted or asserted" to 
sustain the right claimed by these parents. (2) 

(1) See Superintendent Swett's Biennial Keport for 18G4, p 164-5-0. and Judicial De. 
cisions there quoted. 

(2) FerrttervB. Tvler. 48 Vt.. 444. 



16 The Poison Fountain, or 

Thus the law of nature and nature's God, which ordains that 
it is both the right and duty of parents to educate their chil- 
dren ' ' in such manner as they believe will be most for their future 
"happiness," is utterly disregarded and set at naught by the 
State, which ordains that it is neither the right nor the duty of 
parents, but of the State, to say when, where, by whom and in 
what manner our children shall be educated. 

Now, it is always possible for either individuals or States to 
disregard and to violate nature's laws, but it is not possible to 
do so without suffering, sooner or later, a penalty, and a pen- 
alty, too, corresponding in magnitude with the importance 
of the law violated. Hence it is — and we assert it without the 
fear of successful contradiction — that those communities, 
which have so long and so glaringly violated nature's laws in 
the matter of education, are now reaping so heavy and so 
deadly a harvest of crime, pauperism, insanity and suicides. 

Dr. Way land has well said ' 'that tho relaxation of parental 
' 'authority has always been found one of the surest indications 
"of the decline of social order and the unfailing precursor of 
"public turbulence and anarchy." (P). Now, under the 
law, as we have already seen, parental authority is not merely 
relaxed, but it is utterly set at defiance . What, we would ask, 
does parental authority amount to, in the matter of educating 
children, when a parent is not recognized as having any ' 'remedy, 
as against the teacher" for the wrongs he may perpetrate against 
his child, and when, as in California to-day, the parent, is in the 
eye of the law, a criminal, who ventures to send his own child 
to a school of his own choice, and at his own expense, without 
first going with his hat under his arm to a board of petty offi- 
cials, to beg their permission so to do ? 

If parents, any longer, have the least vestige of authority 
over the all-important matter of their own children's education, 
which is not wholly subordinated to the private interests, 
prejudices, and petty spites of any and every little conclave of 
irresponsible upstarts who, by hook or by crook, can so manage 
on election day as to have their names on the tickets of the win- 
ning party, we should feel under many obligations if somebody 
would inform us what that remaining parental authority is, 01 
where it is to be found. 



(P) Wayland's Elements of Moral Scienco, p 313. 



Anti-Parental Education. 17 

Is it not the almost unanimous cry, on the part of parents, 
throughout the length and breadth of the land, that they can 
neither command the respect nor obedience of their child- 
ren ? and are not our Police Courts crowded, and our county 
prisons and State penitentiaries being filled with beardless 
boys, many of whom have had comfortable homes, and have 
grown up in the society of respectable parents, but never under 
their control ? 

But, perhaps, we shall be asked why is it that neither politi- 
cians nor the parents of children have thus far done any thing 
towards furnishing a remedy for all these crying evils. 

We answer, the reasons are numerous ; but the first and 
most important reason we shall assign is ignorance : Ignorance 
of the true and Heaven-ordained relations between parent and 
child; ignorance of the reciprocal duties which they respec- 
tively owe to each other; yes, and ignorance — total ignorance 
— of the foregoing, terrible facts, so clearly revealed by the 
United States census reports. 

Let any one who doubts the general ignorance of our people^ 
on this last subject, test the matter, by catechising the first ten 
men he meets concerning the facts, shown by our published 
tables. The truth is, that the advocates of this New England 
system have been so long, so loud and so persistent in pro- 
claiming to the world its supposed excellencies that nine-tenths 
of the world have, without the least investigation, concluded 
to accept it for all that its most enthusiastic admirers represent 
it to be. Were it not for the wide-spread and almost total 
ignorance on the part of parents, as regards the poisonous and 
deadly fruits which they and their children, and society at 
large, are daily reaping from this anti-parental system of edu- 
cation, it could not survive a single month, in its present shape. 
0, how true it is that Ignorance is the mother of vice! 

Another reason why no remedy has been applied to this fear- 
ful malady is a long-standing, deep-seated and constantly fo- 
mented prejudice in favor of the public school system, which 
makes the politicians afraid to attack the monster, lest they 
hurt their popularity. 

STILL ANOTHER DIFFICULTY, 
Is a want of harmony among those who see and lament the 
terrible evils which this system is bringing on the country, and 



13 The Poison Fountain, or 

who are willing to make any and every sacrifice to avert those 
evils. One says, let us have the Bible in the schools, another 
says no, I want no Bible in mine; a third says, let us divide 
the school funds amongst all the different religious denomina- 
tions in such a manner that each denomination shall, as a body, 
have control of a portion of those funds corresponding with 
the number of its members; while a fourth says, away with 
such silly nonsense, we have far too much ecclesiasticism iu 
the public schools already. But is there not, we ask, 

A COMMON GROUND WHEREON EVERY FRIEND OP EDUCATIONAL 
REFORM CAN STAND? 

Most undoubtedly there is. Let us recognize, just as the law 
of Nature recognizes, the right and the duty of all parents, 
having the ability so to do, to educate their own children in 
their own way and by the use of their own funds. 

After all, it is not less the interest than the duty of parents, 
when they can do so, to pay the cost of their own children's 
education and not to allow the State to pay it for them, for be 
it remembered that the cost and care of properly feeding, clothing 
and educating the child, are hut the price which Nature demands of 
parents for the incomparable treasure of the child's love, honor and 
obedience, and just in proportion to the extent to which parents 
neglect or refuse to pay this price, in precisely the same proportion 
do they forfeit their right to this inestimable boon . 

Let us suppose that the State should take upon itself to feed 
and clothe, as well as to educate the child; does any one doubt 
that a child thus fed, clothed and educated at the public ex- 
pense would grow up almost wholly destitute of parental affec- 
tion? And who is so stupidly blind as not to see that the educa- 
tionoi the child, after all, is the great nourisher of its affections? 
Bospect, love and veneration do not depend near so much on 
either the source or the character of the food which enters the 
stomach, as upon the source and character of that which is 
taken into the mind and heart. 

But in cases where parents have not sufficient worldly wealth 
to give their children a good elementary education, let the 
State aid them just exactly as it should aid them, when neces- 
sary, with means to feed and clothe their children, rather than 
let them either starve or go naked . But for the same reason 
that the State would not feed the children of its more needy 



Anti-Parental Education. 1§ 

citizens upon the most dainty and costly delicacies, nor clothe 
them in the finest silks and satins, so neither should it educate 
them in those liigher or merely ornamental sciences not neces- 
sary for those avocations in which they are likely to engage in 
sifter life. And when the State furnishes educational aid, let 
it do so, always, in harmony with the principles of parental 
guardianship over the child. Let the parent in such cases 
select the school, and the State pay the teacher. Let this boon 
be extended to all who need State aid, without regard to differ- 
ences in politics or religion. , 

Perhaps, though, we shall be told that so radical a change in 
the public school system, as that suggested, would work the 
destruction of the system itself. If that be so, then we would 
ask whether it is better for us to destroy the system, or to let 
the system destroy us ? — — 

Again, it may, perhaps, be objected that even if every parent 
in the land had the means and the privilege of educating his 
own children in his own way, still there would always be found 
some parents in every community who would neglect this most 
sacred duty; and what ought to be done with such parents: 
We answer, what ought to be done with those heartless 
parents who, having the means at hand, either of their own, or 
such as have been furnished by the State, to comfortably feed 
and clothe their children, would, nevertheless, deliberately 
leave them to die of starvation or perish with cold? In either 
case such parents should be punished as criminals against the 
laws both of God and society. But so long as the State under- 
takes to force upon the children of any class of parents a sys- 
tem of education, which they cannot accept without a viola- 
tion of conscience and of Nature's laws, it is nothing less than 
the most cruel tyranny on the part of the State to make such 
a system compulsory. 

Let every friend of educational reform unite in maintaining 
these plain, just and most reasonable principles, and the day is not 
distant when — with Heaven's blessing — we shall restore parental 
authority, re-establish family government, and teach the rising 
generation to love, honor and obey, not only their fathers and 
mothers, but also the laws, both of God and their country . 



20 The Poison Fountain, ok 



CHAPTEB III. 

THE ANTI-PABENTAL SCHOOL SYSTEM DISSECTED AND ANALYZED. 

Should we wish to ascertain the exact character and proper- 
ties of the waters of our great Pacific ocean, we would not 
undertake to analyze the whole ocean, for that would be an 
endless task, but we would take up at most a few ounces of this 
water, and after making a thorough analysis of it, we would 
announce the result as indicating the properties and character 
of the waters of the Pacific. So it is if we would make a care- 
ful and reliable analysis of the essential principles and elements 
which go to make up what is known as the Public School Sys- 
tem. If we were to undertake to subject to an analytical test 
the whole system with its entire paraphernalia of teachers, 
pupils, parents, school directors, school teachers, school books, 
school funds and school houses, as they exist throughout the 
country, we should become amazed and bewildered at the 
magnitude of our undertaking, and would probably abandon 
the enterprise in despair. So let us take from this very large 
mass of school material a small quantity of its essential ele- 
ments, just enough to be handled with ease, and examined with 
care, and we shall be the better able to see what is the char- 
acter of the ingredients which go to make up the system. In 
order that you, good reader, may not accuse us of unfairness 
in our selection of the particular sample to be analyzed, we 
will allow you to choose your own material. Then cast your 
eyes around you among your friends and neighbors, and name 
for us two of the very best, purest, most intelligent, highly 
educated and reliable men of your acquaintance. Let them be 
men of your own religion, and belonging to the same political 
party as yourself. In a word, let them be two men to whom, 
in preference to all others in the world, you would be willing 
to entrust the guardianship of that beautiful little girl of yours, 
should it please God to take you and her mother away from her 
during her years of childhood. Now, these two friends of 
yours, whom we shall call A. and B., we shall take it for 
granted are the very best material to be found in that great 
mass of voters who control by their votes the destinies, and 
shape the character of the public school system, as it exists in 
your city. 



Anti-Parental Education. 21 

Now, suppose these two model men and neighbors should 
some day come to your house, and address you thus: Mr. 
C, we are informed that you are the father of a bright, 
beautiful and intelligent little girl, now about seven years old; 
just the proper age to begin her education. We feel quite 
anxious that she should be properly educated, and, to tell 
you the plain truth, we are afraid that if we leave the matter 
entirely with you, her education will be neglected. Now 
here is what we propose to do. We propose that we — your 
two best friends — together with yourself, shall all enter into 
a written contract, binding ourselves during your daughter's 
minority to contribute annually a certain percentage upon the 
assessed value of our property, which shall constitute a fund 
for the education of this, your little girl. But it must, at the 
same time and in the same contract, be stipulated that it shall 
at all times be in the power of a majority of us three to select 
the teachers and the school-books for your child. Should you, 
against the wishes and without the consent of a majority of us, 
take your child away and send her to some other school, you 
must agree to forfeit, — should we choose to exact it — not exceed- 
ing twenty dollars for the first offense, and not less than twenty 
dollars for each subsequent repetition thereof. You must also 
agree and bind yourself in advance not to withhold your assess- 
ment, even should you withdraw your child from the school of 
our selection, because we should, in that event, need the money 
for the education of other children. 

Now tell us, good reader, could you ever consent, while living 
and in the possession of your reasoning faculties, to entrust 
such a power as this over your infant child — girl or boy — to any 
two men in existence? Would you not spurn such a proposition 
as the above with indignant scorn, come from what source it 
might? We may here remark, in passing, that it surely could 
not better the matter should these supposed friends and neigh- 
bors, in consideration of this proposed outrageous betrayal of 
your parental trust, even offer to perpetrate a similar wrong 
against their own children by turning over to you, the insulted 
father, a corresponding share in their parental authority. And 
yet, good reader, this miniature picture which we have just 
drawn of the public school system, presents that system in its 
very best possible aspect; because we have represented you, the 
father, as still allowed to retain in your own hands one-third of 



22 The Poison Fountain, or 

that parental jurisdiction and control which the God of na^.-o 
requires you to exercise over your child, while the other two- 
thirds are to be entrusted to two of the very best men in the whole 
community. But under the public school system as it is by law 
established, instead of retaining in your own hands even so 
much as one-third of your parental authority, you retain only 
an infinitesimal fraction thereof. Where there are, as in San 
Francisco, tens of thousands of voters, each father divides his 
parental authority into tens of thousands of equal fragments, 
retaining but one of these fragments for himself, whilst the 
great bulk of this authority, instead of being lodged, as in the 
case above supposed, in two of the very best men to be found 
in the city, is scattered around broadcast amongst tens of thou- 
sands of people, good, bad and indifferent. It is gobbled up 
and wielded by every rough and every rake who is allowed a 
vote; and this is what they call our great American Free 
School System. 



Anti-Parental Education. 23 

CHA.PTEK IV. 

A VOICE FROM SAN QUENTIN — CALIFORNIA'S EDUCATED CONVICTS — 
ALL THE YOUNGER CRIMINALS CAN READ AND WRITE — TWO MORE 
PENITENTIARIES NECESSARY TO ACCOMMODATE MASSACHUSETTS' 
PUBLIC SCHOOL PUPILS — CALIFORNIA PUBLIC SCHOOLS THE HIGH 
ROAD TO THE PENITENTIARY — HOW THE ONE SERVES AS A PREPARA- 
TORY DEPARTMENT FOR THE OTHER. 

The following is from resident director's (Lieutenant Gover- 
nor Johnston's) late biennial report, showing the condition of 
the California State prison and State prisoners for the two 
years ending June 30, 1877. This report, under the caption of 
"Educational," says: 

"Turnkey's Table, Number VII, showing the educational 
abilities of the inmates of the prison, gives the number who 
can read and write at nine hundred and eighty-five; read but 
not write, at twenty-four; neither read nor write, at three hun- 
dred and nine. If we consider the number of Chinese and 
Indians in our prison who can neither read nor write, and 
deduct them from the whole number so as to match our Whites 
and Negroes against the same in other States, it will be found 
that ours possess the advantage in a large degree. In fact 
among the younger convicts they can all read and write." 

The Turnkey's Table Number III shows that the number of 
Chinamen in the State prison is 197. Now if we deduct this 
197 from the entire number of convicts who can neither read 
nor write, it leaves just 112 who can neither read nor write 
against 985 who can both read and write. Then again, from 
this 112 there remain still to be deducted the Indians, whose 
number is not given in the turnkey's table. But the most 
startling revelation contained in the above extract is found in 
the concluding sentence, which says, "in fact among the younger 
convicts they can all read and write." 

Now of the younger convicts, as appears from the turnkey's 
table (No. 6) there are some 253 but twenty-one years old, or 
under, while there are 831 under thirty years old. But while 
our young State is making such rapid strides in the way of 
forcing her boys first into her anti-parental schools and then 
into her penitentiaries, her great exemplar Massachusetts, it 
would seem, is not neglectful of her laurels. The regular | 
Boston correspondent of the San Francisco Marning Call, • 



24 The Poison Fountain, or 

under date of November 16, 1877, says : ' ' Tiie rapid progress of 
"knowledge -peculiar to tiie educational system of this State has led 
" to the erection of two more State prisoris, one of which for 
"women was successfully opened a few days ago, the number 
" of wicked females who knocked for admission being forty- 
"four. Present indications point toward the rapid filling up 
."of this new institution in a few months." 1 

We are constantly told, by the friends and admirers of our 
anti-parental educational system, that it is much better for the 
State to expend money for schools and school-houses than for 
jails and penitentiaries. Now taking the foregoing figures as a 
basis of calculation, it would be a very interesting process, and 
would doubtless lead to most important results if some admirer 
of our present educational system, who is a good calculator, 
would make an estimate in dollars and cents of the amount of 
money saved to the State of California per annum by that kind 
of education which is sustained at a cost of more than two and 
a half millions of dollars a year, and which sends to the State 
prison its hundreds of beardless boys, while total illiteracy — 
which we all lament as a great evil — sends not so much as one 
solitary boy to that popular institution. 
*s^ Should anybody, in making such an estimate, find the profits 
exceedingly small in proportion to the investment, let him not 
convert that fact into an argument against education itself, but 
only against this anti-parental system of education ; ^ a system 
which, being conceived in crime, brought forth in ., crime and 
nurtured in crime, must, of necessity, propagate crime. Hoping 
that some one better versed in figures than ourselves will solve 
for us the above problem, we shall now proceed to show how it 

U IS THAT OUR EDUCATED BOYS FIND THEIR WAY TO THE PENITENTIARY. 

Here, we will suppose, is an honest, industrious, hard-working 
laboring man, who has a family, consisting of himself, his wife, 
and half a dozen children, half girls and half boys. To put 
the case in as favorable an aspect as possible, we will suppose 
that he is in moderately good circumstances, being out of debt 
and the owner of a comfortable homestead, but is compelled to 
rely solely on his own labor and that of his wife for means 
wherewith to feed and clothe his family. All his children are 
of an age to attend school, and all are attending the public 
schools, as the law directs. In the first place, heavy and fre- 

i\) See Call of November 25, 1877. 



Anti-Parental Education. 25 

quent drafts are made on the father's scanty and hard-earned 
esources, in order to supply these children with all the required 
books and stationery. These six children, too, must each and 
all be dressed, not according to the means of their parents, but 
according to the rules of the school and the demands of 
fashion, and inasmuch as the more wealthy and aristocratic 
Classes prescribe the law of fashion, they mast dress as well as 
the children of the man who counts his wealth by the million. 
If they do not so dress, they will have to encounter not only 
the contemptuous sneers of fellow-pupils and classmates, but, 
perhaps, the displeasure of teachers, if not expulsion from 
school. The father would reason and, perhaps, remonstrate 
with the teacher on the subject of these rigid and extravagant 
rules of dress, but then he remembers that the law has said, 
that the teacher of a public school is not the agent of the 
parent, nor answerable to him for his conduct toward the pupil. 
He also remembers that the law makes it criminal for a parent 
to insult a teacher, while the teacher may insult the parent with 
impunity; and for these reasons he does not care to risk an al- 
tercation with the teacher on the subject of the boys' dress; it 
would be too unequal a contest. So, in order to meet these 
growing demands for books, stationery and clothing for their 
children, these poor parents are compelled to work harder, 
dress lighter and feed more scantily than is compatible with 
either health or comfort. The father rises earlier in the morn- 
ing than formerly, works later at night, and goes with worn-out, 
ragged, or patched-up clothes, in order that his eldest boy may 
get anew suit, so as to make as respectable an appearance as any 
lad at the Lincoln School. 

The mother, too, in worn-out and tattered apparel, plies her 
washboard with unwonted vigor in order to get money to pay 
the dressmaker for fitting, cutting and making Lizzie's nice new 
dress, for the teacher says she must not come to school looking 
like an old washerwoman's girl. The daughter, too* is learning 
to play upon the piano, and of course it will not do for her to 
lend a helping hand towards washing either clothes or dishes, 
for the teacher says it will spoil the shape of her fingers and im- 
pair the delicacy of her sense of touch. Thus both father and 
mother work harder than slaves, and dress coarser than beggars, 
in order that their children may enjoy the great advantages of 
our glorious free school system of education. 



26 The Poison Fountain, or 

In the meantime these children are sitting in the same 
classes, studying the same books, wearing the same costly fab- 
rics, participating in the same amusements, contracting tho 
same habits, imbibing the same love of ease, and the same aver- 
sion to manual labor, and the same contempt for manual labor- 
ers, as do their far more wealthy and aristocratic schoolfellows. 

Leaving out of sight the five younger children, we shall now 
give our undivided attention to the eldest son of this poor la- 
borer. 

After years of study he at length completes his course at the 
Lincoln High School, acquitting himself with great honor, 
amidst the cordial congratulations of professors and school di- 
rectors, and eliciting the vociferous applause of the admiring 
multitude. "We may imagine we see his poor old father crouch- 
ing on the outskirts of the crowd, feasting his eyes upon an oc- 
casional glimpse of his boy, but not daring to approach him be- 
cause he has no clothes fit to be seen on such an occasion; 
doubtless that father is picturing to himself a brilliant future 
for his boy. He is, perhaps, looking forward to the time when 
he shall be a governor, a senator, or possibly President of the 
United States. Very likely, too, he fancies that in his declin- 
ing years he shall be able to look to his son for that assistance 
and support which his own exhausted means may then refuse to 
afford him. But alasl how baseless are all these castles in the 
air. The day after quitting school the young man finds himself 
for once thrown on his own unaided resources. His father says 
to him: "Well, my boy, I have been a long time struggling 
with poverty and want in order that you might become edu- 
cated. You see that both your mother and I are in rags, and 
that handsome suit which you now wear is yet to be paid for. 
You now have a fortune in your education, and hereafter you 
must learn to shift for yourself and, if possible, lend a helping 
hand from time to time to the support of your younger broth- 
ers and sisters. 

Thus situated, the young man probably for the first time in 
his whole life, asks himself seriously the question, what busi- 
ness is he going to follow? A more appropriate question 
would be, what business can he follow ? There he stands in 
the midst of a great bustling city, without a cent of money at 
his command; without friends, without occupation, and without 
the necessary qualifications for any earthly employment within 



Anti-^akental Education. 27 

his reach. Probably his first effort will be to find a position as 
clerk in some bank or other business establishment; but he 
soon learns that these positions are all filled by the sons of 
wealthy or influential parents. Occasionally he meets a former 
schoolmate, discharging the duties of some coveted place, but 
on inquiry, he learns that he has obtained his position at the 
instance of a wealthy father or an influential friend. Failing 
in everything else, he at length seeks for copying as a means of 
earning bread. He gets hold of a city directory and makes a 
list of the names and locations of all the law offices in the city. 
He then goes from office to office in quest of the only work he 
really knows how to do. But everywhere he is forestalled; 
everywhere he is doomed to disappointment. On every hand 
he meets young men and boys similarly situated, and making 
similar fruitless efforts to raise a few dimes with which to stave 
off starvation. Already the boy has spent weeks in an earnest 
but vain endeavor to find work as a copyist. In the meantime 
he has been living partly on his old father, and partly on what 
he could pick up at the free-lunch tables. Seeing the son's ex- 
treme embarrassment, the father perhaps suggests to him that 
inasmuch as he has been disappointed in everything else, he 
had better come and help him lay down those cobble-stones on 
Battery street, where he can at least earn money enough to buy 
victuals and clothes. But, alas! his hands are wholly unused 
to toil, and what is infinitely worse, he has been, as we before 
said, so trained up as to despise both manual labor and manual 
laborers. He would be ashamed for one of his school compan- 
ions to even meet him walking the street in company with his own 
father, because of the old man's horn-like palms, and his laborer's 
dress, so that even if he knew how to work, still in view of the 
fact that it was only the other day that he finished his educa- 
tional course with so much eclat and amidst such a shower of 
bouquets as rained around him from the fair hands of San Fran- 
cisco's wealth and beauty, is it to be expected that he is now 
going to heave cobble-stones on a public street here under the 
very shadow of his alma mater; to be twitted and jeered at by 
those who envied him the literary honors with which he came 
loaded from the Lincoln school? No, no; that is utterly impos- 
sible; propose anything but that. Yet, says he, something 
must be done, and that soon; I must have clothes, and I must 
have bread; the world owes me a living, and I intend to have it. 



28 The Poison Fountain, or 

Thus saying, lie turns his back upon his humble and destitute 
home, and betakes himself again to perambulating the streets, 
ready for any desperate turn in events that promises him 
money. 

Let the reader pause here, and ask himself the question, what 
is there to save this youth from becoming a pest to society, a 
disgrace to his old father and mother, and finally a convicted 
felon, doomed to serve the State -within penitentiary walls ? 
Perhaps it will be claimed that the bare recollection . of his; 
newly acquired literary honors and the fear of losing the esteem i 
of those who, the other day, so vociferously applauded his 
youthful oratory and threw at his feet such a profusion of flowers, 
ought of itself to be sufficient to shield him from temptation's 
harm. But unfortunately, those withered flowers will not serve 
for food, nor can he make clothes either of approving smiles or 
shouts of applause. But can it be possible, you say, that one 
so young, so intelligent and so well educated has no respect for 
the law ? Why, sir, if you talk to him about respecting the 
law, he will laugh you to scorn. Who is it that respects the 
law, he will say, except just so far as the law subserves his pur- 
poses ? Have we not laws against bribery ? and yet do not even 
our law-makers, on election days, send out their dirty minions 
with money in their pockets with which to buy their way into 
the very halls of legislation ? Are not seats in the United States 
Senate sometimes bought with gold ? And does not the Presi- 
dent of the United States himself at this very moment hold his 
high office by virtue of a false and forged certificate of election ? 
Then why prate to me about the sanctity of the law, when the 
very men who make the laws trample them unceremoniously un- 
der their feet whenever it suits their purposes. But, you will 
say, if this youth has no regard for human laws, surely he can- 
not be wholly indifferent to the laws of God. Be not so fast, 
my dear sir. Have you forgotten that the boy was educated in 
our public schools, where it is a criminal offense, punishable by 
a forfeiture of all interest in the public school moneys, to even 
mention the subject of religion in the hearing of a pupil. And do 
you know that there is no such prohibition against inculcating 
the horrible doctrines of atheism in these schools? That many 
of our public school teachers aro avowed atheists, who believe 
neither in God nor Devil; neither in Hell nor Heaven, and that 
our young hero is a firm believer in these dismal and diabolical 



Anti-Parental Education. 29 

doctrines? Very true, you say; I knew very well that no re- 
ligion was allowed to be taught in the public schools, but then 
why did not his father and mother teach him religion at home ? 

We first answer the question by asking another, and it is 
this : How do you know that his parents themselves had any 
well denned notions of religion? Or in fact any religion at all ? 
If they had firmly believed in the teachings even of that natural 
religion which an almighty hand has written in indelible char- 
acters on every human heart, they surely would never have con- 
sented to surrender to the public at large the right to select the 
teachers, and in all essential particulars to shape the mental 
and moral as well as the physical destines of their child. 

But suppose that his parents were in every other particular 
real models of perfection, both in their professions and in 
their practices of religion, was it to be expected that he, their 
son, would accept religious instruction from them ? Are not 
they illiterate, and is not he educated? And shall wisdom take 
lessons from ignorance? Has he not learned to despise them 
both for their poverty and their simplicity? Can it be doubted 
that even the sacrifices which they made in his behalf; that the 
very patches with which they mended their old garments, in 
order that he might be handsomely dressed; that the very toils 
and hardships which have wrinkled their brows, soiled their 
features, and imparted the bony touch to their palms in order 
that he might learn to lead a life of ease, and freedom from 
manual labor, are, on his part, requited with coldness and 
contempt? And after learning to despise his parents, is it 
at all likely that he would profit either by their religious in- 
struction or their praiseworthy example? No, no, their religion, 
just like their toilsome lives, and their old clothes, may be 
good enough for them, but to an educated young man like him- 
self it is only a bundle of cumbersome and useless rubbish, 
and he will have none of it. 

Then, since our young hero has learned to respect neither the 
laws of man, nor the laws of God, and will neither be directed 
by the good counsels, nor influenced by the exemplary lives of 
his own father and mother; where, let it be asked, shall we look 
for the controlling power that is to shape his future destinies? 
Just follow him, as he hurries along yonder busy street, and 
you shall see. Already he is in company with half a dozen of 
his late school-mates, each of whom has a tale of woe and dis- 



30 The Poison Fountain, oft 

appointment to tell, quite like his own. Now, for the first time 
since leaving school, each and all of these boys find themselves 
in congenial society. They feel that the world cares nothing 
for them, and they care nothing for the world. They all have 
empty stomachs and seedy clothes, and there is not money 
enough in the crowd to purchase even one night's lodging, at 
the meanest lodging-house in the city. 

One of the party suggests that, having failed in everything 
else, he has an idea of making an effort to get a position as 
dish-washer in some hotel, or failing in that also, he might seek 
employment as stable-boy, to clean out the stalls of some livery 
stable. The majority of his companions, however, frown down 
the proposition with contemptuous indignation, and our hero 
threatens never hereafter to speak to the low-bred rascal, should 
he ever again be guilty of advancing a proposition so far beneath 
the dignity of an educated gentleman. In order, however, to 
put at rest the question as to the feasibility of finding even that 
kind of employment, one little fellow, the smallest in the- 
crowd, puts in a word to assure his companions that there is 
not enough in the last suggestion to be worth quarreling about. 
He says he has been, for the past three days and a good part 
of the nights, hunting from house to house, both in public ho- 
tels and private dwellings, for any kind of light work, such als 
boys could do, and everywhere he has found the field already 
occupied, most always by Chinamen; whereupon they all agree 
that they could not if they would, and would not if they could, 
enter into successful competition with Chinamen, for the honor 
of discharging the menial duties of kitchen servants. 

At this particular juncture one of the party suggests that his 
old widowed aunt has $500 in gold twenties, buried under her 
barn floor; and that he knows just where to find the cash. They 
can get this money and nobody but themselves need be any the 
wiser for it. He says she has plenty without that, and she is 
such a stingy old hag that it would be serving her just right 
for them to go and relieve her of that five hundred. We do 
not propose to follow this little band of young hoodlums far- 
ther, for the present, but if any friend of our present public 
school system can discover any motive which will deter from 
crime and preserve from the penitentiary any one of the hun- 
dreds upon hundreds of our city's youths, whose education and 
situation in life differ in no essential particular from that of 



Anti-Parental Education. 31 

the boys just above described, he will, by pointing out such 
motive unquestionably confer a great and lasting benefit both 
on the rising generation and on society at large. From the 
fate of this eldest boy of our poor laborer we shall leave the 
reader to guess the "doom which awaits his younger brothers 
and sisters. 



PETITION. 

TO THE HONORABLE SENATE AND ASSEMBLY OF THE STATE OF CALIFORNIA. 

We, the undersigned, citizens and voters of the State of California, without 
regard to political or religious differences, respectfully petition your honorable 
bodies to pass a law for the taking of the sense of the voters of this State, at the 
next general election, touching the propriety of so amending Article IX of our 
State Constitution, as to make it substantially conform to the following proposi- 
tions; such vote when so taken to have no other legal effect than to indicate the 
deliberate judgment of the people, and thus serve as a guide for future action in 
the premises : — 

PBOPOSITIONS. 



Parents are bound, by the law of Nature (each according to his ability), to 
properly feed, clothe, and educate their own children, and unwilling parents shall 
be compelled, by appropriate legislation, to discharge these duties. 

II. 

It is a public duty to assist, at public expense, in furnishing the necessary 
means wherewith to properly feed, clothe, and educate children whose parents 
are unable to so feed, clothe, and educate them. 

III. 

No citizen of this State shall ever be taxed for the feeding, clothing, or edu- 
cating of children — not his own — whose parents are amply able to feed, clothe, 
and educate them. 

IV. 

All such parents as are neither mentally nor morally unfit to have the custody 
of children are entitled, and in duty bound, to select for the education of their 
own children schools wherein they believe that neither the teachers, the associa- 
tions, nor the kind of instruction given will seriously endanger either their health, 
their lives, or their morals, but will best promote their temporal and eternal 
welfare. 



Neither the State, nor any municipal or other government organized under 
Us authority, shall ever force upon the child of any parent — not legally adjudged 
mentally or morally unfit to discharge the duties of the parental office — any par- 
ticular teacher, book, or system of religious or non-religious instruction against 
the conscientious objections of such parent. 



32 The Poison Fountain. 

VI. 

Tuition, when at public expense, shall embrace a good common English and 
business education, added to such a thorough training in one or more of the me- 
chanic arts, or the manufacturing, domestic, or productive industries, as will best 
prepare youth for the practical business of self-support, but shall not extend to 
the merely ornameDtal or more abstruse arts, or sciences, except in a limited class 
of cases (to be provided for by law) as a reward for exalted merit, when coupled 
With a high order of talent and a special aptitude for such arts or sciences. 

VII. 

The whole business of educating and training the young shall, like other pro- 
fessions, be open to private enterprise and free competition; provided that the 
State shall establish and maintain such necessary educational institutions as pri- 
vate enterprise shall fail to establish and maintain; and every parent or guardian 
entitled to have his or her child or ward educated at the public expense, shall se- 
lect for such pui'pose his own school, and the teacher or principal of such school 
shall be paid periodically for teaching such pupil a compensation, the maximum 
of which shall be fixed by law, which compensation shall be proportionate to the 
progress made by the pupil during such period of tuition in the legally appointed 
secular branches. Said progress to be ascertained by examiners duly elected or 
appointed in such manner as may be provided by law; but no religious tuition 
which may be given in any such school shall be at public expense or subject to 
the supervision of said examiners. 



How Intelligent Citizens of all Classes Regard the Above Peopositions. 

The friends and opponents of the foregoing propositions held a meeting in 
the city of Oakland on the evening of October 6, 1879, for the purpose of consid- 
ering their merits. In referring to that meeting and its action touching said 
propositions, a leading Oakland daily, the Evening Tribune, in its issue of October 
10th, among other things says: " A large audience gathered last Monday evening, 
at the old Congregational Church building, to hear the Hon. Zach. Montgomery 
discuss the demerits of the Public School System of the United States. It was 
generally expected and hoped that the Rev. Horatio Stebbins, D. D., of San Fran- 
cisco, would be present and take issue with the views advanced by Mr. Mont- 
gomery, but the reverend gentleman did not put in an appearance. Pred. M. 
Campbell, State Superintendent-elect, at the request of Mr. Montgomery, pre- 
sided. ... In support of the two principal opinions, namely, the pernicious 
influence of our present system of public instruction, and the right and duty of 
the parent to select and control the education of the child , as well as clothe and 
feed it, he advanced seven propositions, which, if carried out practically, he be- 
lieved would prove vastly superior to the present system. He was frequently 
plied with questions, put by persons in the audience, to which he responded with 
nlacrity. A vote waa taken on the several propositions advanced by Mr. Mont- 
gomery, to ascertain the sense of the audience in regard to the subject, and in- 
variably the result showed that the speaker was sustained by a majority of his 
hearers." 



"Reader, preserve this Pamphlet, and when certain stupid or 
mendacious newspaper editors shall in the future, as in the past, 
falsely charge its Author with seeking a division of the Publie 
School Fund on a sectarian basis, turn to this record and put to 
blush the ignorant or unprincipled falsifier. 



Question. 

What are some of the things^ to be accomplished by the adop- 
tion of the Parental system of educatidn as herein proposed, in 
place of the Anti-Parental system now prevailing 1 ? 



Answer. 



/. Under the system proposed, teachers will become amenable 
to parents, instead of to politicians for the care which they take 
of the health, the lives, the morals and the manners, as well as the 
mental training of their pupils. ^ 

~* 

II. Teachers will receive a eompensqjUon according to the 

pyrogress of their pupils, and not according to their own skill in 
repeating the answers, which a paid prompter has prepared, in 
response to purchased questions. 

III. Children, as a rule, will hecome more affectionate, 
respectful and obedient to parents, xohile young, and more patri- 
otic and law-abiding when old. 

IV. Children will receive a far better and mare practical 
education than under the present system at one-tenth the cost to 
the pmblic. 

V. The number of criminals, patters, and insane persons 
will be vastly diminished, and so will be the amount of taxes paid 

for the support of Policemen, Jails, Penitentiaries, Almshouses, 
and Lunatic Asylums. 



P D 9.-7. 



» -« 



onfirmation of Hon. John J. Parker to be an 
Associate Justice of the Supreme Court 
of the United States 



HEARING 

BEFORE THE 

SUBCOMMITTEE OF THE 
COMMITTEE ON THE JUDICIARY 

UNITED STATES, SENATE 



SEVENTY-FIRST CONGRESS 

SECOND SESSION 

ON THE 

CONFIRMATION OF HON. JOHN J. PARKER TO BE AN 

ASSOCIATE JUSTICE OF THE SUPREME COURT 

OF THE UNITED STATES 



APRIL 5, 1930 



Printed for the use of the Committee on the Judiciary 




UNITED STATES 
GOVERNMENT PRINTING OFFICE 
107150 WASHINGTON : 1930 



COMMITTEE ON THE JUDICIARY 

GEORGE W. NORMS, Nebraska, Chairman 



WILLIAM E. BORAH, Idaho. 
CHARLES S. DENEEN, Illinois. 
FREDERICK H. GILLETT, Massachusetts 
ARTHUR R. ROBINSON, Indiana. 
JOHN J. BLAINE, Wisconsin. 
FREDERICK STEIWER, Oregon. 
CHARLES W. WATERMAN, Colorado. 
DANIEL O. HASTINGS, Delaware. 
FELIX HEBERT, Rhode Island. 

John R. Robertson, Clerk 
William L; Ievin, Assistant Clerk 
II 



LEE S. OVERMAN, North Carolina. 
HENRY F. ASHURST, Arizona. 
THOMAS J. WALSH, Montana. 
THADDEUS H. CARAWAY, Arkansas. 
WILLIAM H. KING, Utah. 
HUBERT D. STEPHENS, Mississippi. 
C. C. DILL, Washington. 



U&RAftY OP CONGRESS 

! RECEIVED 

| APR 1 < 1 

DOCUMENTS DIVISION 






CONTENTS 



Statement of — Page 

Fish,H.E 70 

Green, William 23 

Johnson, Mercer G 79 

Townsend, E. C 61 

White, Walter 74 

in 



CONFIRMATION OF HON. JOHN J. PAEKEK, TO BE AN 
ASSOCIATE JUSTICE OF THE SUPREME COURT OF 
THE UNITED STATES 



SATURDAY, APRIL 5, 1930 

United States Senate, 

Subcommittee cf the 
Committee on the Judiciary, 

Washington, D. C. 
The committee met, pursuant to call, at 10.30 o'clock a. m., in 
room 212, Senate Office Building, Senator Lee S. Overman (chairman) 
presiding. 

Present: Senators Overman (chairman), Hebert, and Borah. 
Senator Overman. The committee will come to order. This is a 
subcommittee of the Senate Judiciary Committee to hear anything 
that might be said for or against the confirmation of Judge Parker. 
Anyone who wants to be heard may be heard. 

I received some letters this morning, which I will ask to be read in 
the record. 

The first is a letter from Judge Parker, dated April 1, 1930. 
(The letter in question is as follows :) 

United States Circuit Court of Appeals, 

Fourth Judicial Circuit, 
Charlotte, N. C, April 1, 1930. 
Hon. Lee S. Overman, 

Senate Office Building, Washington, D. C. 

Dear Mr. Overman: I am in receipt of your kind letter of March 31, for 
which I thank you very much indeed. 

In answer to your question as to the extent of my practice before going on the 
bench, I beg to advise that I practiced in Monroe in partnership with Judge 
Stack from 1910 to 1922, our firm being Stack & Parker and later Stack, Parker 
& Craig. We did a large general practice, but did not represent any public 
service corporations. I do not want to appear to boast of our practice, but I 
suppose that we had as large a practice as any firm of lawyers located in a rural 
section in the State. Toward the latter part of the period I was employed in 
important cases at various parts of the State, and spent much time away from 
home in the trial of cases. I practiced in the State and Federal courts, including 
the Supreme Courts of North and South Carolina, the circuit court of appeals of 
this circuit and the Supreme Court of the United States. An examination of the 
reports of the Supreme Court of North Carolina will show that hardly a court 
passed that I did not argue a number of cases before that court. 

In 1922, Judge Stack was elected to the State superior court bench, and I 
decided to move to Charlotte so as to have a wider field for practice, and here 
became head of the firm of Parker, Stewart, McRae & Bobbitt, in association 
with Messrs. Plummer Stewart, John A. McRae, and William H. Bobbitt. Here 
again, I was not retained by public service corporations, but did a wide general 
practice. During this period I was appointed special assistant to the Attorney 
General to prosecute certain war fraud cases and prosecuted the lumber fraud 
case in Washington. You doubtless recall when I was there engaged in this duty, 
and Judge Peyton Gordon, who was district attorney, Justice Jennings Bailey, 
who presided, or Mr. Charles A. Douglass, Mr. T. C. Bradley or Mr. Hugh 



2 CONFIRMATION OF JOHN J. PARKER 

O'Bear, who appeared for the defense, or Mr. Justice Stone, who was Attorney 
General, can tell you something about how I handled the case. 

Among the important cases in which I have appeared, I would mention first 
the Par Clearance case in the Supreme Court of the United States (262 U. S. 649), 
in which I represented some 300 State banks against the Federal Reserve Bank of 
Richmond. Opposed to me in the case were Mr. John W. Davis and Mr. Henry 
W. Anderson. The Supreme Court reversed the Supreme Court of North 
Carolina in this case. I appeared for the Bank of Union in Bank of Union v. 
Heath et al. (187 N. C. 18), in which certain bequests of the late B. D. Heath 
were subjected to liability for the debts of the beneficiaries. The questions of 
law involved were intricate and important and the amount involved was large. 
Bank v. Redwine (171 N. C. 559) involved important questions of lien and regis- 
tration. Horton v. S. A. L. Ry. Co. (175 N. C. 472) involved important questions 
under the Federal employers' liability act. Williams v. Philadelphia Life Insur- 
ance Co. (105 S. C. 305, 112; S. C. 100) involved questions of insurance law, as 
did Gunter v. Philadelphia Life Insurance Co. (130 S. C. 1), State v. Plyler (153 
N. C. 630); State v. Gray (162 N. C. 608, 45 L. R. A. (N. S.) 71); and State v. 
Thomas (184 N. C. 757), were murder cases involving important legal principles. 
McNinch v. American Trust Co. (183 N. C. 33) involved the doctrine of con- 
structive trusts. Wood v. Vanstory (171 Fed. 375), I argued alone in the circuit 
court of appeals before I had been at the bar 12 months. 

The above are but a few of the cases which I argued in appellate courts, and 
many of the most important cases in which I appeared did not reach the appellate 
courts. Thus the McCall will case, involving property worth around $100,000, 
was twice tried by me in Sumter County, S. C., each trial lasting about three 
weeks. Lamborn & Co. v. Snyder Grocery Co. was a case lasting nearly three 
weeks in the Federal court in Charlotte. I represented one of the defendants 
in the celebrated prosecution of the Bailey Bros. Tobacco Co. which consumed 
more than two weeks in the Federal court at Greensboro. You will recall, also, 
that I was leading counsel for Doctor Peacock in the celebrated murder trial at 
Lexington. 

While the practice of a lawyer in North Carolina is necessarily somewhat 
limited in range, I beg to call attention to the fact that on the circuit court of 
appeals I have dealt with cases of the greatest magnitude and from the widest 
range of subjects. During the four and one-half years I have been on that 
court, I have written 184 opinions, 34 of which, however, appear as per curiam 
opinions. One hundred and fifty are published under my name. I inclose a list 
of some of these which seem to me to be important. 

Thanking j^ou for writing me, and with kindest personal regards, I am 
Sincerely yours, 

John J. Parker. 

Senator Overman. The next letter I have here is one from the 
Governor of North Carolina, dated April 4, 1930, and signed O. Max 
Gardner, governor. 

(The letter referred to is as follows:) 

State or North Carolina, 

Governor's Office, 
Raleigh, April 4, 1980. 
Hon. Lee S. Overman, 

United States Senate, Washington, D. C. 

My Dear Senator Overman: Judge Parker and I, as you know, do not sub- 
scribe to the same political faith. He is a Republican and I am a Democrat. 
Yet as governor of North Carolina and as a citizen of the State, and also as one 
who has the most implicit faith in his character as a man of integrity and ability 
as a judge, I do have a tremendous interest in the controversy that is now being 
waged over his fitness to serve on the Supreme Bench of the United States. 
It will not, I trust, therefore, appear presumptuous if I venture, for such con- 
sideration as you and your committee may think it worth, my own opinion of 
the qualifications of this distinguished North Carolinian for this high place. 

I have known Judge Parker since we were in college together at the Univer- 
sity of North Carolina and I unhesitatingly say, and you are authorized to 
quote me as saying, that I have never known any man who possessed a higher 
or a finer sense of righteousness and justice than Judge Parker. I have absolute 
confidence in the integrity and essential soundness of his intellectual processes, 
and I can not believe for an instant that he would be unfair, either to the most 



CONFIRMATION OP JOHN J. PARKER 3 

powerful or the most humble citizen of this country. His whole outlook and 
philosophy as a man and as a judge could not, in my opinion, be more accurately 
epitomized than by the inscription over the entrance of the chapel at the Uni- 
versity of North Carolina: 

"What doth the Lord require of thee but to do justice and love mercy and walk 
humbly with thy God." 

In my opinion Judge Parker enjoys the confidence and esteem of an over- 
whelming majority of the people of this State, irrespective of party affiliations. 
They respect him as a man, admire him as a judge, and that he would some day 
be elevated to the Supreme Bench had become a sort of general hope and expect- 
ancy. This was amply attested by the practically universal enthusiasm and ap- 
proval with which the news of his appointment by President Hoover was received. 

There is not, in my judgment, as I have already suggested, the slightest basis 
in reality, for the fear expressed by one group of our citizens that he would not, 
as a judge of the Supreme Court, be absolutely fair and impartial in any case or 
controversy which might arise. I have never known any man whose concern for 
the upholding and protection of what we know in a democracy as human rights, 
as distinguished from property rights, excelled Judge Parker's. 
Sincerely yours, 

O. Max Gardner. 

Senator Overman. I have also a letter here from a former law 
partner of Judge Parker's, which I will ask to have included in the 
record, without reading, together with several others. 

(The letters referred to are as follows:) 

Stewart, McRae, & Bobbitt, 

Attorneys at Law, 
Charlotte, N. C, April 4, 1930. 
Senator Lee S. Overman, 

United States Senate, Washington, D. C. 

Dear Senator Overman: I am inclosing to you herein a clipping from one 
of the Charlotte papers under date of April 3, 1930. I thought that you would 
be interested in reading it. It appears from this article that an effort is being 
made by the national organization to whip into line local organizations. I 
unqualifiedly say to you that the laboring people of North Carolina, those who 
belong to unions and those who do not belong, are practically unanimous in their 
support of Judge Parker. They have absolute confidence in his fairness and 
impartiality as well as his ability. All classes and conditions of people in North 
Carolina, regardless of party affiliations, are most enthusiastically, and I might 
say passionately, anxious to see Judge Parker on the Supreme Court. Our 
people know him. 

Personally, I feel that it is a serious matter when a judge is to be opposed on 
the ground that he wrote an opinion which he honestly believed to be in con- 
formity to the decisions of the Supreme Court of the United States. I read the 
opinion immediately after it was rendered and I am also familiar with the Hich- 
man opinion. I can not see how the Parker opinion could be different from what 
it is without overruling the opinions of the Supreme Court of the United States. 

I am not impressed with this protest against his confirmation. I have myself 
been properly classed as strongly in sympathy with the laboring people and their 
organizations, except communism, all these years; but I must confess that I 
am somewhat impatient with the protests which have been made. 

If the Senators could only know Judge Parker as I know him there would not 
be a single opposition vote, and I make this statement knowing whereof I speak. 

With my very best wishes, I beg to remain, 
Yours very truly, 

Pltjmmer Stewart. 



[The Charlotte fN. C) News, Thursday, April 3] 

Labor Chiefs Break Over Confirmation of Judge Parker 

report wilson, state leader, yields stand repudiation of indorsement 

of judge parker for seat on supreme court bench 

Reports of a serious break between executive officers of the North Carolina 
Federation of Labor over the fight of the American Federation of Labor on con- 
firmation of Judge John J. Parker, of Charlotte, to the United States Supreme 



4 CONFIRMATION" OF JOHN J. PARKER 

Court were supported to-day by reports from Washington, that T. A. Wilson, 
president of the State organization, officially repudiated his indorsement of the 
jurist. 

The Washington report combined with reports emanating within the past 
few days from Raleigh, Greensboro, and Winston-Salem showed Secretary 
Marcus Sauls, of the State Federation, sent to Senator Overman a telegram 
declaring in substance that North Carolina organized labor would not support 
Judge Parker. That action, rumored for several days, was confirmed by a report 
received to-day from Greensboro and disclosed the break among the federation's 
executive heads. Almost simultaneously a report came from Washington that 
President Green, of the American Federation, received from President Wilson 
an explanation of his (Wilson's) first message and a declaration that the State 
Federation is in full accord with the American Federation, this second message 
being a definite repudiation of the first one and constituting a complete reversal 
of position. 

President Wilson's action, according to reports emanating from Raleigh, was 
forced by President Green, who held over the former's head a club in the form of a 
threat to compel his resignation. The whole tangled situation, embarrassing 
both to President Wilson and to other leaders of organized labor in this State, 
was discussed in detail Sunday at a large gathering of labor leaders, held in 
Raleigh. Mr. Wilson, who is a member of the North Carolina commission 
charged with administration of the workmen's compensation law, admitted at 
that meeting, according to several available reports, that President Green had 
sent to him a vigorously worded reprimand for indorsing Judge Parker before 
making an investigation of his record. Until the American Federation presented 
its protest to Senator Overman's subcommittee in Washington, North Carolina 
labor regarded Judge Parker as a jurist who opposed within legal limitations the 
use of injunctions in labor disputes, it was learned. 

The rank and file of North Carolina labor, so far as is indicated by available 
reports, is standing by the American Federation but is not taking any particularly 
aggressive action. Privately, many of the State's labor leaders have the highest 
regard for Judge Parker and are hopeful that he will be confirmed though there 
is an absolute lack of comment by any of the State's recognized labor leaders 
regarding this situation. Even President Wilson and Secretary Sauls have said 
nothing for publication, though Mr. Wilson did make public about two weeks 
ago in Raleigh his telegram to President Green, in which Judge Parker was in- 
dorsed. The text of President Wilson's second message was made public in 
Washington by President Green. The text of Secretary Saul's message, support- 
ing the American Federation's president and countering the State Federation's 
president, also was given out for publication in Washington. The report seems 
to be generally current throughout organized labor centers of this State that labor 
is not expecting to prevent the Senate's confirmation of Judge Parker but does 
expect to impress upon him the view of organized labor in bitter opposition to the 
use of injunctions, instead of conciliation and arbitration, in labor disputes. 

[Charlotte News, April 3, 1930] 

CAROLINA LABOR PROTESTING ON PARKER CHOICE UNION ORGANIZATIONS IN 

FOUR CITIES OF STATE REPORTED TO HAVE VOICED OBJECTIONS 

Washington, April 3. — (A. P.) — Protests from labor organizations in four 
North Carolina cities against confirmation of Judge John J. Parker, of North 
Carolina, as associate justice of the Supreme Court, were received to-day by the 
Senate Judiciary Committee. 

The protests were /from the Brotherhood of Railroad Trainmen, at Charlotte; 
the Central Labor Union of Winston-Salem; the Central Labor Union of Salisbury, 
and from the Union of Raleigh. 

A subcommittee of the Judiciary Committee, headed by Senator Overman, 
Democrat, North Carolina, will give a hearing on Saturday to representatives of 
organized labor who are protesting Judge Parker's confirmation because of his 
decisions in labor cases as a member of the Federal circuit court of appeals. 

Pending the hearing there is no indication of the line-up in the Senate on th 
Parker nomination although his friends are confident of the votes for confirmation. 



CONFIRMATION OF JOHN J. PARKER 5 

LOCAL RAIL BROTHERHOOD DENIES MAKING PROTEST ON JUDGE PARKER 

W. L. Smith, official representative of the local Brotherhood of Railway 
Trainmen, to-day denied a report that the local order had protested confirma- 
tion of Judge John J. Parker as associate justice of the Supreme Court. 

"We have nothing against the judge," he said. " But we have taken no official 
action on the matter either for or against." 

In other labor groups of the city, it was explained by spokesmen to-day that 
local organizations were finding themselves embarrassed over the complex situ- 
ation. 

Not only has the judge taken no action locally against labor groups or their 
welfare, according to these leaders, but actually he represented labor in the car 
strike troubles of Charlotte a few years ago while he was a lawyer of Monroe. 

However, State organizations are unable at present to take a stand against 
officials of the American Federation of Labor, the officials said. The breach 
between controlling officials of the American Federation of Labor and local 
officials who personally favor the confirmation of the judge is being rapidly 
whipped together by superior authorities, officers indicated. 



Brevard, N. C, April 4, 1970. 
Senator Lee S. Overman, 

United States Senate, Washington, D. C. 

My Dea.r Senator: I am inclosing you an editorial written by Hon. James 
F. Barrett, the editor of the Brevard News, on Judge Parker. 

As you know, Mr. Barrett is ex-president of the North Carolina Federation of 
Labor and has always taken an active interest in all matters affecting the work- 
ingman and has advocated the cause of the laborer ably and successfully. 

During the World War Mr. Barrett was a member of the speakers' bureau of 
the Department of Laboi and in the performance of his duties went over a large 
part of the United States and made very valuable investigations for the Gov- 
ernment. 

There is no man who is closer to labor and who has better knowledge as to the 
friends and foes of labor, and his judgment has proven itself correct in the past 
and I think that he is correct in the case of Judge Parker. 

While the Transylvania Bar Association is a small organization, still, yet, 
man for man, I consider it the equal of any similar organization in the United 
States, and we unanimously indorse Judge Parker, and I sent a telegram to 
President Hoover indorsing Parker. 

You know that I am one of the militant Democrats of North Carolina, but 
still, yet, I know Judge Parker well and have observed him in his activities as a 
member of the board of trustees of the university, and he is as fine and upstanding 
man as I know and is a Christian gentleman in its fullest meaning, and the 
indorsement of Mr. Barrett and myself and of our bar association was entirely 
unsolicited, and is as yet unknown to Judge Parker. 

And may I now at this time, and as chairman of the Democratic Executive 
Committee of Transylvania County put in a request that you make arrangements 
to come to Transylvania County during the coming campaign, for us mountain 
folks love you and want you to come up and advise us. 

With every good wish, I am, 
Yours very truly, 

W. E. Breese. 



[The Brevard News, Wednesday, April 2, 1930] 
OPPOSITION TO PARKER FOR SUPREME COURT 

Intense surprise was registered in America, more especially in North Carolina, 
when the American Federation of Labor announced opposition to the confirma- 
tion of Hon. John J. Parker as a member of the United States Supreme Court. 
This opposition is based upon a decision rendered by Judge Parker in a case 
where the owners of coal mines had an agreement with their workers that they 
should not join the miners' union so long as they remained in the employ of that 
mine. This is known as the yellow-dog contract, and is one of the most obnoxious 
conditions that labor must contend with. Senator Borah, progressive, says that 
Judge Parker's decision in the case was in keeping with precedent, and had 



6 CONFIRMATION OF JOHN" J. PARKEPv 

he decided otherwise, his decision would have been reversed by the Supreme 
Court. 

President Green and the executive council of the American Federation of 
Labor are to be commended for their eternal vigilance, their alert watchfulness, 
in behalf of the toiling millions of America. In no other industry are the workers 
so completely at the mercy of unscrupulous employers as found in the coal 
mining industry, and it can also be said that in no other industry are there so 
many unscrupulous employers as found among the coal-mine owners and their 
representatives. Every advantage of the industry lies with the employer, be- 
cause of the very nature of that industry. The owners own all the land about 
the mines, and can patrol the premises and police the men with hired thugs who 
parade as officers of the law. 

The workers themselves are, most of the time, down in the bowels of the earth, 
shut away from the association of their fellows even as they are shut out from the 
sunlight and pure air. The miners have but little opportunity to speak for 
themselves, or to take any part in the negotiations with law-makers, or even with 
their own kindred organizations. So it is absolutely necessary that these men 
have representatives to speak for them. Many of them are foreigners, and know 
nothing of the contents of the contract which they sign with the company. Their 
signature to the yellow-dog contract is a surrender of their rights as men and as 
citizens, hence the contempt which an American citizen has for this form of 
enslavement in a free country. 

Notwithstanding all these things, we believe that the American Federation of 
Labor is objecting to the confirmation of one of the whitest, finest, biggest- 
hearted, fairest men ever elevated to the Supreme Court of the United States. 
We believe that Judge John J. Parker would cheerfully have rendered an adverse 
decision in that case had it been possible for him to have done so without having 
his decision reversed because of its conflict with precedent and the established 
rule. Judge Parker's great heart has throbbed in sympathetic unison with the 
mass of mill workers about him, men and women who have called him friend, 
and have never called in vain. In 1920 John Parker replied to organized labor's 
questionnaire in a perfectly frank manner, a reply which marked his sympathetic 
interest in the problems facing labor. He was given the biggest vote ever re- 
ceived, up to that time, by a republican candidate for governor in North Carolina. 
The bulk of this big vote was cast by labor. Had the American Federation of 
Labor known Judge Parker as labor in North Carolina knows him, we believe 
this protest would not have been made. 

Judge Parker will be confirmed along toward the last of the week, or the first 
of the next week. He will take his seat among those who constitute the Nation's 
highest tribunal. He will go along as though this protest had never been made, 
rendering decisions fairly, impartially, according to the light of the law and the 
promptings of his great, pure heart. The years will roll by, and Mr. Justice 
Parker will grow riper in years and richer in wisdom, and one day the news will 
be flashed back to the Old North State that her beloved son has been elevated to 
the position of Chief Justice of the Supreme Court of the United States. 



Wilmington, N. C, April S, 1930. 
Hon. Lee S. Overman, 

United States Senate, Washington, D. C. 

My Dear Senator: I am very glad to see that you are chairman of the sub- 
committee of the Judiciary Committee, to which has been committed the con- 
sideration of the confirmation of Judge John J. Parker, because I know that you 
will give both sides a fair and adequate hearing. 

It is utterly impossible for me to understand the real ground of opposition to 
Judge Parker, and as you and I have been friends for many years, I desire to 
make one or two comments on the matter; and, of course, Judge Parker knows 
nothing of my purpose or act. 

When I was holding court in Monroe in 1914 or 1915 — I have forgotten exactly 
which — Parker appeared before me in many cases, and I was impressed with his 
sound sense and general ability, and since he has been elevated to the circuit 
bench I have appeared before him in several cases, and have, of course, read many 
cases which he has decided and with which I had no connection, and I have been 
deeply impressed with the great advance which he has made in legal knowledge, 
so much so that I regard him as one of the very best judges before whom I have 



CONFIRMATION OF JOHN ,T. PARKER 7 

ever appeared. Indeed, I think when one considers his youth, the possibilities of 
development and usefulness on his part are unlimited. 

In this connection, I want to say that his decisions have always appeared to 
me as being not only well reasoned and supported by plentiful references, but are 
sustained by reason and sound judgment, and, even though the press informs us 
that he is opposed by the American Federation of Labor, the Negroes and the 
Communists, I have myself seen no public statement of any reasonable ground 
for such opposition. Of course, Judge Parker sustained an injunction against 
the miners and that seems to be the ground of Mr. Green's opposition, but has 
anyone shown that his opinion was not founded upon law and sustained by au- 
thority and common sense? If the decision of the court had been all that is now 
said by radicals, more or less, why didn't they appeal it to the Supreme Court 
and get it reversed? 

As you know, I am a conservative, but I do strongly advocate rational develop- 
ment and all possible improvement by reasonable means, but do not approve 
Marxian theories, and I do not approve the attempt on the part of any organized 
section of people, by whatever name known, Labor or Ku Klux, trying to dictate 
appointments, confirmations, or anything else committed by the Constitution 
and laws to public officers. 

I hope you will be able to report favorably on Judge Parker's confirmation, 
and I am sure no one will regret it, but I confess I did regret seeing that you and 
Senator Simmons felt it to be your duty to vote against the confirmation of the 
Chief Justice. 

Sincerely your friend, 

Geo. Rountree. 



Greensboro, N. C, April 5, 1930. 
Senator Lee S. Overman, 

Senate Office Building, Washington, D. C. 

Dear Sir: I am a Democrat, and usually do not believe in one of my political 
faith dabbling in a Republican pie scramble, but it seems to me that there is 
probably involved in the John J. Parker appointment and opposition thereto, 
something that justifies a good citizen making an exception. 

I was the first president of the North Carolina State Federation of Labor, and 
did more organizing and promotion work than has probably been done by any 
other single individual, and to this day most of the local unions in this city, 
Charlotte, and Salisbury and other places are the ones I organized without any 
salary from the American Federation of Labor nearly 30 years ago; therefore, I 
think the facts would indicate my loyalty to the principles of trade-unionism. 

I am convinced that the objections to Parker's confirmation are foolish and 
rather far-fetched. 

While not intimately acquainted with Parker, I have known him and his 
family, their antecedents and connections and contacts for more than 40 years, 
and I know it would be impossible for him to be rabidly radical, or perniciously 
reactionary. He is by nature and training, associations and habits, mildly 
progressive, reasonably progressive, and entirely trustworthy and honest. 

I am not a job holder nor an applicant for favors at the hands of the American 
Federation of Labor nor of the Government, nor anyone else, and as a man whose 
service proves his earnestness in the cause of organized labor, and the principles 
of collective bargaining, I refuse to echo objections I do not understand, or assume 
to mouth talismanic slogans that do not mean anything, and I, therefore, urge 
the confirmation of Mr. Parker. 

Mr. Parker is such a man that the fundamental and basic principles of our 
Government will be safe in the hands of, and at whose hands the principle of 
"equal rights to all and special privileges to none," will not suffer. 

You may use this at your discretion, and your support of this confirmation 
will be regarded as a further indication of your own statesmanship, and cause 
your friends pleasure. 
Sincerelv yours, 

W. M. Tye. 



5 CONFIRMATION OF JOHN J. PAEKER 

Greenville, N. C, April 7, 1930. 
Hon. Lee S. Overman, 

United States Senator. 
North Carolina negroes are proud of the State's recognition and are militant 
in their support of Judge Parker, who is a reminder of men like Augustus S. 
Merrimon. The negro did not suffer with L. Q. C. Lamar on the supreme 
bench. Unshackle the liberal-minded South and confirm him. 

C. M. Eppes. 



April 6, 1930. 
Hon. Lee S. Overman, 

Senator, Washington, D. C. 
Dear Senator Overman : This letter is to substantiate my statement made 
to you in Washington yesterday that I had talked to numbers of the laboring 
people in North Carolina in regard to Judge John J. Parker being elevated to 
the Supreme Court bench and all are in line for him to be confirmed as such. 
He is eminently fitted and able and no one I have talked with blames him for 
the now famous "yellow-dog" contract, and they are of the opinion that he 
rendered his decision in that case according to the law. While none believe in 
contracts of this nature, they are not placing any blame on him whatever for its 
existence. Assuring you that it was a pleasure and an honor to be presented to 
you and thanking you for your keen interest in this important matter. I beg 
to remain, 

Very truly yours, 

S. B. Winslow, 
122 North McDowell Street, Raleigh, N. C. 



Raleigh, N. C, April 5, 1930. 
Hon. Lee S. Overman, 

United States Senate: 
Urge Judge Parker's confirmation. He is fair upright and able. 

J. Crawford Biggs. 



Washington, D. C, March 14,- 1930. 
The Hon. Herbert Hoover, 

President of the United States, Washington, D. C. 

My Dear Mr. President: The death recently of Justice Sanford left a vacancy 
on the bench of the Supreme Court of the United States which every citizen, 
particularly every lawyer, should want to see filled with the appointment of one 
best fitted to meet the requirements of the office and, knowing how eager Your 
Excellency is to find that particular man, I feel it my duty to address you con- 
cerning one whose name has been mentioned for the position. I do this un- 
solicited. 

Several years ago, John L. Phillips, Charles S. Shotweli and others were placed 
on trial under the Federal Conspiracy Statute and were specifically charged 
with defrauding the United States of large sums of money in connection with the 
so-called lumber frauds. This prosecution was instituted through the activities 
of certain members of Congress and a special fund appropriated for the purpose 
of preparation and trial. John J. Parker, at that time a member of the Bar of 
North Carolina, practicing in Charlotte, was made a Special Assistant Attorney 
General of the United States and the lumber fraud case assigned to his care. 
It was the writer's privilege to represent one of the principal defendants and to 
be actively engaged in the trial during all of the three months and more that 
the case was on hearing in the Supreme Court of the District of Columbia. 
During all of this time I had an opportunity to study the quality of Parker's 
mind and to observe his demeanor during those days of stress and strain. It was 
a particularly trying ordeal. Placed in a courtroom in a foreign jurisdiction 
with the public gaze and the eyes of Congress upon him, the mettle of this man 
was tested in a way to show his true caliber. 

As I told the then Attorney General, now Associate Justice Stone, in an 
active career of more than 15 years at the bar, I never knew a case to be more 
thoroughly prepared, more studiously arranged for trial or more ably presented 
to the court on the law and to the jury on the facts than was the lumber fraud case 



CONFIRMATION OF JOHN J. PARKE It 9 

by Mr. Parker. He withstood every attack against him, showed great judgment 
and fairness, and won my admiration and respect both as a lawyer and a man. 

I have not the pleasure of a close personal acquaintance with Judge Parker, 
having seen him hut once since the above-mentioned case terminated, and that 
shortly after he was appointed to the circuit court, and I am not writing this 
letter for him but for you, Mr. President, in order that you might know what one 
learned of his adversary at law in a long trial of an important case and no better 
point of observation could be obtained. 

There may be many others who might have equal qualities and attainments 
and be as well fitted to sit in the seat of Justice Sanford, but I am confident 
none would bring a higher degree of those qualities which I regard as requisite, 
namely, superior ability as a lawyer, sterling and unquestioned integrity as a 
man, an exalted sense of honor, fairness, duty and obligation, coupled with 
that rare quality, judicial poise and temperament. 

I trust that I have not transgressed upon your time in writing this long letter, 
and I trust it may aid in your consideration of the appointee. 

Assuring you of my deep respect and high regard, I am, my dear Mr. President, 
Very truly yours, 

Thomas C. Bradley. 



Raleigh, N. C, April 4, 1930. 
Hon. Lee S. Overman, 

Senate Building, Washington, D. C: 
I am an engineer on the Seaboard Air Line Railway, North Carolina Division, 
member of the Brotherhood of Locomotive Engineers and I would like to have 
the appointment of Judge John J. Parker confirmed. 

A. R. Vattghan. 



Monroe, N. C, March 29, 1930. 
Hon. Lee S. Overman, 

United States Senate, Washington, D. C. 
Dear Mr. Overman: In regard to press reports with reference to protest 
against the seating of Judge John J. Parker to the high office for which he has 
been selected, that of Associate Justice of the Supreme Court. This protest filed 
by the American Federation of Labor. 

I have known Judge Parker from boyhood and he has been my neighbor and 
friend. I feel that the President has acted very wisely in appointing Judge 
Parker a member of the Supreme Court of the United States. 

I hope that you will use your best efforts to have Judge Parker's appointment 
confirmed. I have been a Democrat all my life and have been connected with 
Labor through the Train Service Organizations for many years, and I have 
always found Judge Parker fair to both labor and capital. 
Yours trulv, 

W. E. Cason. 



Answer to Charge That Judge Parker Advocated Denial of Rights 

to Colored People 

In saying that the constitutional amendment of North Carolina had been 
accepted in good faith there was no approval of denying the equal protection of 
the laws to the colored people or of denying them ari% rights under the Constitution 
of the United States. Section 4 of Article VI of the constitution of North Carolina 
prescribed as a qualification for registration for voting that the voter should be 
able to read and write any section of the constitution in the English language. 
It was provided, however, that no person who was entitled to vote on January 1, 
1867, or the lineal descendant of such person should be denied the right to register 
and vote by reason of failure to possess the educational qualification provided 
he registered prior to December 1, 1908. After the latter date the educational 
qualification applied alike to all persons, and many white persons have been 
denied the right to vote in North Carolina because of failure to comply with it. In 
this respect there is a difference between the suffrage provision of the North 
Carolina constitution and others which have been criticized. In 1920 the period 
within which an exception was made in favor of registering those who had voted or 



10 CONFIRMATION OF JOHN J. PARKER 

whose ancestors had voted prior to 1867 had long since elapsed, and the educa- 
tional qualification was being applied to all persons alike. 

In the Greensboro speech it was not proposed to deny the colored people any 
rights under the law or to discriminate against them in any way. After the 
adoption of the suffrage amendment they had not attempted to participate in the 
political life of the State and no attempt had been made to organize them for 
political purposes. They were going along quietly attending to their own business. 
They were apparently following the advice of some of their leaders who counseled 
them to let politics alone. Nevertheless, in almost every campaign the Republi- 
can Party had been denounced as intending to put them in power in North 
Carolina and restore the evils of the reconstruction period. In 1920 certain 
adversaries of the party raised the same false issue and sought to stir up racial 
prejudice by charging that the Republicans intended to organize the negroes 
and turn the State over to them. The Greensboro speech was merely an answer 
to this attempt to inject the race issue into politics. It called attention to the 
fact that the colored people were not trying to, enter politics in North Carolina, 
that the Republican Party of the State was not trying to organize them or 
restore them to power in the State, and deplored the attempt to stir up racial 
prejudice and hatred against them. 

That the above is unquestionably correct appears from the letter filed with the 
committee by the Society for the Advancement of Colored People, wherein it is 
said: 

"In 1920 Judge Parker was the Republican candidate for governor of North 
Carolina. A discussion arose as to whether or not the Republican Party would 
seek to organize negro voters. * * * Judge Parker is quoted by the Greens- 
boro (N. C.) Daily News, of April 19, 1920, as saying in his speech of acceptance 
of the gubernatorial nomination before the Republican State convention: 'The 
Republican Party in North Carolina has accepted the amendment in the spirit 
in which it was passed and the negro has so accepted it. I have attended every 
State convention since 1908 and I have never seen a negro delegate in any con- 
vention that I attended. The negro as a class does not desire to enter politics. 
The Republican Party of North Carolina does not desire him to dp so. We 
recognize the fact that he has not yet reached the stage in his development when 
he can share the burdens and responsibilities of government. This being true, 
and every intelligent man in North Carolina knows that it is true, the attempt 
of certain petty Democratic politicians to inject the race issue into every cam- 
paign is most reprehensible. I say it deliberately, there is no more dangerous or 
contemptible enemy of the State than men who for personal or political advan- 
tage will attempt to kindle the flame of racial prejudice or hatred.'" 

It is no praise of a judge to say that he will give to every man his rights under 
the law; for it is his duty to do that. But as showing that Judge Parker has 
not in the administration of his office denied to the colored people their rights 
guaranteed by the Constitution, attention might be called to the fact that he 
presided in the circuit court of appeals of the fourth circuit in the recent case of 
City of Richmond v. Deans, in which, in accordance with a prior decision of the 
supreme court a residential segregation ordinance based on race was held viola- 
tive of the provisions of the Constitution. That he has the confidence and re- 
spect of the colored people who know him is shown by the letter of President 
Shepard, of the North Carolina College for Negroes, written to Senator Overman 
and filed with the committee. 

David H. Blair. 



Statement by Mary G. Kii*reth, President, Woman Patriot Publishing 
Co., 8 Jackson Place NW., Washington, D. C. 

Mr. Chairman, I ask permission to record myself in favor of Judge Parker's 
confirmation. I am not an employer, or laborer, or lawyer. 

I am merely one of what Senator Borah called the third party to this issue — 
the public — and make this appeal for Judge Parker's confirmation only on behalf 
of the principle of equality before the law. 

Now, as I understand it, the whole purpose of this hearing is to go behind 
the decisions of Judge Parker. Yet Judge Parker's decisions are in exact agree- 
ment with those of the United States Supreme Court and other courts. 

It is reassuring that this committee has now decided to examine the im- 
mensely important decisions of Judge Parker. 

They can bear the closest scrutiny. 



CONFIRMATION OF JOHN J. PARKER H 

The identical legal nature of union and nonunion contracts between em- 
ployers and employees is so clearly set forth in the Hitchman decision of the 
United States Supreme Court, that I asked permission to file this statement 
simply to bring out points in the Hitchman decision, particularly in the dis- 
senting opinion of Mr. Justice Brandies, that I have not heard presented before 
your committee. 

Any attempt of a group to nullify a general law in its own behalf, to exempt 
itself from laws upholding the inviolability of contracts, would land our com- 
mercial nation in chaos, with a privileged proletarian class in the saddle. Ever 
since the days of Thomas Jefferson this country has rejected the class legislation 
theory that "some men are born with saddles on their backs and other are 
equipped by Government with boots and spurs to ride them." 

As Jefferson also said, "An equal application of law to every condition of man 
is fundamental." Without equal justice under the law — equal security for all 
legal contracts, of rich and poor, employer and employee, union or non-union — 
there is no permanent security for any contract. 

If there is any one principle upon which every justice then on the Supreme 
Court agreed in the Hitchman case, it is this: 

UNION LABOR CONTRACTS AND SO-CALLED "YELLOW-DOG" CONTRACTS ARE EQUAL 

RIGHTS 

Mr. Justice Brandeis, in his dissenting opinion in the case (Hitchman Coal & 
C. Co. v. Mitchell, 245 U. S. 270-272, October Term, 1917) upheld the type of 
contract which is bitterly denounced as the "yellow-dog" contract by certain 
labor leaders, as absolutely the same sort of contract, in a legal sense, as the union 
labor "closed-shop" contract and governed by the same legal rights and principles. 

Mr. Justice Brandeis held: 

"It is urged that a union agreement curtails the liberty of the operator. Every 
agreement curtails the liberty of those who enter into it. The test of legality 
is not whether an agreement curtails liberty, but whether the parties have agreed 
upon something which the law prohibits or declares otherwise to be inconsistent 
with the public welfare. 

"The operator, by the union agreement, binds himself (1) to employ only 
members of the union; (2) to negotiate with union officers instead of with em- 
ployees individually the scale of wages and the hours of work; (3) to treat with the 
duly constituted representatives of the union to settle disputes concerning the 
discharge of men and other controversies arising out of the employment. These 
are the chief features of 'unionizing' by which the employer's liberty is curtailed. 
Each of them is legal. To obtain any of them or all of them men may lawfully 
strive and even strike. And, if the unions may lawfully strike to obtain each of 
the things for which the agreement provides, why may it not strike or use 
equivalent economic pressure to secure an agreement to provide them? 

"It is also urged that defendants are seeking to 'coerce' plaintiff to 'unionize' 
its mine. But coercion, in a legal sense, is not exerted when a union merely 
endeavors to induce employees to join a union with the intention thereafter to 
order a strike unless the employer consents to unionize his shop. Such pressure 
is not coercion in a legal sense. The employer is free either to accept the agree- 
ment or the disadvantage. Indeed, the plaintiff's whole case is rested upon 
agreements secured under similar pressure of economic necessity or disadvantage. 

"If it is coercion to threaten to strike unless plaintiff consents to a closed union . 
shop, it is coercion also to threaten not to give one employment unless the appli- 
cant will consent to a closed nonunion shop. The employer may sign the union 
agreement for fear that labor may not be otherwise obtainable; the workman 
may sign the individual agreement for fear that employment may not be other- 
wise obtainable. But such fear does not imply coercion in a legal sense. 

"In other words, an employer, in order to effectuate the closing of his shop to 
union labor, may exact an agreement to that effect from his employees. The 
agreement itself being a lawful one the employer may withhold from the men 
an economic need — employment — until they assent to make it. Likewise an 
agreement closing a shop to nonunion labor being lawful, the union may with- 
hold from an employer an economic need — labor — until he assents to make it. 
In a legal sense an agreement entered into, under such circumstances, is volun- 
tarily entered into; and as the agreement is in itself legal no reason appears why 
the general rule that a legal end may be pursued by legal means should not be 
applied." 



12 CONFIRMATION OF JOHN" J. PARKER 

Mr. Justice Brandeis dissented from the opinion of the court in that case, not 
on the ground that a so-called "yellow-dog" contract is illegal but on the ground 
that a union contract was as good at law as a "yellow-dog" contract — neither 
better nor worse "in a legal sense" — and on the ground that in the opinion of 
Mr. Justice Brandeis "there was no attempt' to induce employees to violate their 
contracts" (in that case). Mr. Justice Holmes and Mr. Justice Clark concurred 
in this dissenting opinion. On the technical questions as to the nature of the 
contracts involved in that particular case and as to whether or not the union in 
that case had used illegal methods to induce violation of those particular con- 
tracts, the dissenting opinion disagreed with the court. But it did not disagree 
with, but rather insisted upon, the principle that union-labor contracts and so- 
called " yellow-dog" contracts are the same thing in a legal sense. 

The opinion of the court in the same case, delivered by Mr. Justice Pitney, 
likewise held as to what are called "yellow-dog" contracts: . 

"This court repeatedly has held that the employer is as free to make non- 
membership in a union a condition of emploj^ment as the working man is free 
to join a union, and that this is a part of the constitutional rights of personal 
liberty and private property, not to be taken away even bj r legislation, unless 
through some proper exercise of the paramount police power. (See Adair v. 
United States, 208 U. S. 161, 174; Coppage v. Kansas, 236 U. S. 1, 14.) " (Hitch- 
man Coal & C. Co. v. Mitchell, 245 U. S. 251.) 

Thus in the Hitchman case every justice on the Supreme Court agreed as to 
the legality of a contract "to make nonmembership in a union a condition of 
employment" (the so-called "yellow-dog" contract) and also that an injunction 
might properly be granted to restrain violation of such a contract, even by 
"peaceable" intimidation, if "contrived for the purpose of inflicting damage" 
as the court elsewhere held, or to "induce employees to violate their contracts" 
as Mr. Justice Brandeis put it, in declaring that in his opinion no such attempt 
had been made in the Hitchman case. 

Judge Parker, in the case of the United Mine Workers of America v. Red Jacket 
Consolidated Coal & Coke Co. (18 Fed. (2d) 839, Cir. Court of Appeals, 4th 
Circuit, 1927), was governed logically and legally by the principles stated by the 
Supreme Court in the Hitchman Coal & C. Co. case 10 years before. 

Neither labor leaders nor lawyers have ever pointed out, "in a legal sense" 
how it is possible to hold a so-called "yellow-dog" contract illegal, without at 
the same time holding a union labor contract illegal. Both, in a legal sense, as 
Mr. Justice Brandeis so clearly points out, are equal rights, which must legally 
stand or fall together. Calling the one a bad name and the other a good thing 
can not alter their character at all. 

And if Judge Parker had refused to uphold a "yellow-dog" contract, then 
indeed would the labor unions, no less than all employers and all lawyers, have 
reasons to object to his elevation to the Supreme Court. For, to hold the so- ' 
called "yellow-dog" contract illegal, any judge on any court would be compelled 
to hold a union-labor contract illegal, on the same terms and for the same reasons, 
in a legal sense. 

The argument that a union "closed-shop" agreement is an excellent thing in 
itself, and that a shop closed against union labor is wrong in itself, has nothing to 
do with the question "in a legal sense" where, as Mr. Justice Brandeis so lucidly 
shows, they are exacthy the same type of legal contracts. 

Many manufacturers, including the National Association of Manufacturers, 
have frequently indorsed the "open shop," and condemned the "closed shop" 
whether closed for or against union labor, as industrially undesirable. But that 
likewise has nothing to do with he naked legal question of the constitutional 
rights of employers and employees to make union or nonunion "closed-shop" 
contracts. That, in the language of the Supreme Cdurt, in the Hichman case, is 
a part of the "rights of personal liberty and private property" that can not be 
taken away "even by legislation." 

Much less can it be taken away by abusive epithets and organized special 
pleading for labor-union monoply of the "closed-shop" type of contract. 

The American people in their Constitution reserved to themselves in their 
several States the right to decide many economic, social, and moral issues, which, 
like political questions, can not properly be decided by the Supreme Court, as 
they are not within its jurisdiction. The Supreme Court itself has repeatedly 
pointed out the strict limitations of it's jurisdiction, ever since it refused to advise 
President George Washington in a matter not before the court. Were it to 
become a general court of review, passing upon all economic, social, and moral 
controversies, it would lose its character and respect, which it has maintained 



CONFIRMATION OF JOHN J. PARKER 13 

since Marshall's day, as a court of law, which has declined to pass upon "political 
questions" for more than a century. 

Judge Parker's confirmation would restore to the people that confidence in the 
Supreme Court which many organized groups have attempted to take away — 
confidence in its justice under the law without respect to political or industrial 
controversies. Rejection of Judge Parker would be a defeat for equal justice 
under the law and a victory of outside organized emotion and class partisanship 
over the legal knowledge of the United States Senate. 

Mary G. Vilbreth. 



[From the Charlotte Observer] 
THE CONTESTED NOMINATION AND THE FACTS 

The American Federation of Labor is opposing Judge John J. Parker's appoint- 
ment as Associate Justice of the Supreme Court of the United States on the ground 
that he places property rights above human rights, and basis its charge on a deci- 
sion of the circuit court of appeals written by him. 

Our Government is one of laws and not of men. If Judge Parker decided that 
case or any other case contrary to law it would be some evidence of his unfitness 
for the office. If he decided it in accordance with the law, then the American 
Federation of Labor's criticism should be directed at the law and not at the judge. 
If the law is wrong, the way to get it righted is through act of Congress. It 
will be a sorry day for America when our judges are appointed for their leanings 
toward or prejudices against any group, or when a judge is to be damned for 
following the law because it does not suit some group for him to do so. Integrity 
of character and knowledge of law rather than interpretative viewpoint concerning 
any one question should be the determinative factor in the appointment and 
confirmation of all members of the bench. 

The decision of which labor complains is that in the Red Jacket case. An 
analysis of the case clearly shows that Judge Parker and the other members of 
the circuit court of appeals, when they rendered their decision, were deciding no 
new points, but were following decision of the Supreme Court of the United States 
previously rendered on similar points. 

The controversy in the Red Jacket case, reported in 18 Fed. (2d) 839, was not 
between employer and employees, but between the employers and an outside 
labor union which was attempting to interfere with their business. The complain 
labor union which was attempting to interfere with their business. The complain- 
ants in that case were operators of mines in West Virginia. They were operating 
on the nonunion basis and their employees had entered into contracts not to 
join a union while continuing in their employment. These employees were not 
members of the United Mine Workers of America; but that organization decided 
to bring them into the union. It thereupon declared a strike in the nonunion 
West Virginia field and sent numbers of armed men into that field to induce the 
nonunion workers to join the union and go on a strike. These armed men engaged 
in a pitched battle with State officers, and martial law was declared. The 
United States district judge in southern West Virginia granted an injunction 
restraining the United Mine Workers and their officials from interfering with the 
employees of complianants or from inducing them to violate their contracts by 
joining the union and going on a strike. 

On appeal to the circuit court of appeals the injunction granted was attacked 
chiefly on the ground that a conspiracj' to prevent the mining of coal was not a 
conspiracy to interfere with interstate commerce. The Supreme Court had 
decided the question directly to the contrary of this contention in the Second 
Coronado case (268 U. S. 295, U. S. v. Brims 272 U. S. 549) and the Stone Cutters' 
case (274 U. S. 37). The injunction was criticized in that it forbade peaceful 
persuasion as well as forcible interference with and intimidation of employees; 
but the duty to enjoin such persuasion had been expressly laid down by the Su- 
preme Court in the case of Hitchman Coal Co. v. Mitchell (245 U. S. 229). In 
other words, the court in the Red Jacket case declared no new law but merely 
applied the law as it had previously been declared by the Supreme Court. The 
United Mine Workers petitioned the Supreme Court to review the case, but it 
refused to do so, which, in view of the nature of the questions involved, not only 
amounted to an approval of the decision but an indication that the principles 
followed had been settled by prior decisions of the court. 

107150—30 2 



14 CONFIRMATION OF JOHN J. PARKER 

This decision did not involve the right or wrong of contract between the 
employer and its employees; and did not recognize the contract in any way 
except that in which the Supreme Court had previously said in the Hitchman 
case that it must be recognized. It did not strike at the right of labor to organize, 
but, on the contrary, expressly upheld the right to organize and the right of the 
union, even in the face of the contracts referred to, to extend its membership in 
all lawful and proper ways. But it did hold that when the union turned aside 
from its normal and legitimate objects and purposes and engaged in an actual 
combination or conspiracy in restraint of trade, it was accountable therefore in 
the same manner as any other organization. 



Carolina Mortgage Co., 

Raleigh, N. C, April 8, 1930. 
Hon. Lee S. Overman, 

United States Senate, Washington, D. C. 
My Dear Senator Overman: On my trips over the State recently I find a 
uniform sentiment in favor of the confirmation of the appointment of Judge 
Parker to the Supreme Court. Without an exception this is true, regardless of 
political affiliations. Personally, I desire to register my position as follows: 

I was reared in an adjoining home to Judge Parker, in Monroe, N. C. I have 
known him from infancy. In his entire career nothing derogatory to his honesty, 
ability, or moral integrity can be rightfully charged. He is a Christian gentle- 
man, and as for his legal knowledge and judicial poise and fairness, statements to 
the contrary could only fall flat because of their barrenness of truth. 
With my best wishes, 
Cordially yours, 

David A. Houston. 



Eugene, Oreg., April 7, 1930. 
Hon. Lee S. Overman, 

United States Senate, Washington, D. C. 
Honorable Sir: I am a Republican, having a Maryland and Virginia ancestry, 
and my father was a soldier in the United States Army for four solid years during 
the Civil War; but, notwithstanding that I am a Republican, I actually believe 
that the South really is a part of the United States and should bi fully recognized. 
I have had 27 years' active practice at law. 

It affords me the greatest pleasure to have read all of the decisions of Judge 
John Johnston Parker since he was appointed to the Circuit Court of Appeals 
for the Fourth Circuit. I think that it will be an honor to the United States for 
the Senate to confirm Judge Parker's nomination for the Supreme Bench of the 
United States; and I further believe that he is and shall be a judge equal to 
Joseph Story, John Marshall, or Roger Brooke Taney. Judge Parker's knowl- 
edge of the law is profoundly sound and his statements of the law are very excep- 
tionally clear. 

Very truly yours, 

H. E. Slattery. 



Richmond, Va., April 9, 1930. 
Hon. Lee S. Overman, 

United States Senate, Washington, D. C. 
Dear Sir: In view of the attack on the independence of the judiciary, as 
evidenced by the opposition to Judge John J. Parker's confirmation as a Justice 
of the Supreme Court, I transmit to you herewith a resolution unanimously 
adopted by the bar of the city of Richmond, Va., the seat of the Circuit Court of 
Appeals for the Fourth Circuit, of which court Judge Parker is a member. 

Three hundred and eighteen members of the bar were present, an unprec- 
edented attendance. 
Respectfully, 

Leon M. Nelson, 
President Bar Association of the City of Richmond, Va. 

"Resolved, That the bar of the city of Richmond (the seat of the Circuit Court 
of Appeals for the Fourth Circuit) do hereby indorse the nomination of the 
Hon. John J. Parker for the office of Associate Justice of the Supreme Court of 
the United States." 



CONFIRMATION OF JOHN J". PARKER 15 

The foregoing resolution was unanimously adopted at a meeting of the bar 
held in the city of Richmond on the 8th day of April, 1930, 318 members being 
present. 

John B. Duval, 
Secretary Bar Association. 

Raleigh, N. C, April 8, 1930. 
Hon. Lee S. Overman, 

Senate Chamber, Washington, D. C. 

Dear Senator: I have followed the objections raised to the confirmation of 
Judge John J. Parker as Supreme Court judge rather carefully. 

It is my opinion that these charges are not well founded. In his court decisions 
he has followed recognized precedents and endeavored to do the right as he saw 
it. It is my impression that the people of North Carolina who believe in fair 
play desire to see Judge Parker confirmed. 

I have known Judge Parker not so intimately, but have watched his career 
for many years, and believe he can be trusted, and that he will uphold the high 
standards maintained by the great court to which he has been selected as a 
member. 

It is an honor to the State to furnish a member of the Supreme Court of the 
United States, and I believe if you insist on his confirmation that your friends, 
and the people of North Carolina will believe that you have done right in the 
premises. 

With kindest personal regards, and best wishes always, I am, 
Yours sincerely, 

R. A. DOUGHTON, 

Chairman State Highway Commission. 



Monroe, N. C, April 7, 1930. 
Hon. Lee S. Overman, 

United States Senate, Washington, D. C. 

My Dear Senator: I see in the press where a few leaders in organized labor 
are fighting John J. Parker, trying to keep him from being confirmed Associate 
Justice of the Supreme Court. 

I have been a member of the Brotherhood of Railway Trainmen for 22 years, 
and if you will pardon the length of this letter I wish to tell you about John J. 
Parker and will appreciate it if you will read this letter before the honorable 
committee appointed to investigate his record. 

I was raised with John J. Parker, have known him from birth, attended school 
with him, and will say as a labor voter there isn't a more sincere honorable 
Christian man in the United States. All the money in the United States Treasury 
couldn't buy him. He is competent, capable, and a scholar. There isn't a 
more fitted man in the United States for this high honor given him by President 
Hoover. 

If the rank and file in labor fraternities in North Carolina could vote for 
John J. Parker to be confirmed, 90 per cent would vote in his favor. 

Our little city is a railroad division point for the Seaboard Air Line Railway 
Co. where several different labor crafts have unions, and I don't believe I would 
sav wrong when I say he would get a vote of 100 per cent. 

I have never agreed with John Parker in politics, but the Republican Party 
should feel highly honored in having such a man as he is in their party. He is 
an able jurist and will always be a student. John Parker always remembers 
his friends whether in overalls or in the highest executive of the largest corpora- 
tions. 

I can not conceive the idea of labor leaders fighting a man as honest as John 
J. Parker is. 

Wish I was financially able to come to Washington and look you gentlemen in 
the eyes, also the labor leaders fighting him, and tell you about this capable 
self-made man. 

I sincerely hope you and the other two honorable Senators will unanimously 
indorse him, and every honorable Senator in the Senate will vote for him to be 
confirmed. 

In years to come these honorable Senators will smile with pride because of 
their voting for him to be confirmed and the honorable President, Mr. Herbert 



16 COXFIEMATIOX OF JOHX J. PAKKEE 

Hoover, will feel proud of this appointment because he will prove to be one 
of the greatest associate judges of the Supreme Court that ever lived. 

I am writing you this letter, Mr. Overman, without the knowledge of a living 
soul, but I was anxious to try and tell you the truth about one of the fairest, 
squarest-minded men that ever lived, and I want you and the other members 
of the committee to know that John J. Parker has the indorsement of the rank 
and file of members of labor organizations in North Carolina where he was born 
and reared. 

With highest personal regards, cordially 3'ours, 

John Dunham Bundy. 



Rocky Mount, N. C, April 7, 1930. 
Hon. Lee S. Overman, 

United States Senate, Washington, D. C. 

Dear Senator: My acquaintance with and knowledge of Judge John J. 
Parker justifies me in the opinion that opposition to his confirmation is without 
reasonable foundation or excuse. 

Added to his brilliant intellectual gifts are scholarly learning, judicial temper 
and a very high conception of the judicial duties and office. 

He is incapable of deliberate or intentional injustice to any cause or person, 
and labor will receive at his hands the same scrupulous care and regard that 
will be given by him to life, liberty, and property. 

The opinions for which he is unjustly criticized, are in every case based upon 
decisions of the Supreme Court of the United States. To have flown in their 
face or refused to have been controlled by them would have been unpardonable 
egotism and flagrant insubordination. 

I am writing this without Judge Parker's solicitation or knowledge, and for 
the simple reason that I think he is entitled to have the lawyers of the State, 
who know him, avouch his fitness for the high office to which he has been 
appointed. 

It is needless for me to add that I belong to the opposite political party from 
Judge Parker. 

With very kind regards, I am, 
Very truly yours, 

F. S. Spruill. 



Charleston, S. C, April 12, 1980. 
Hon. L. S. Overman, 

Senate Office Building, Washington, D. C. 
I see by papers that confirmation of Judge Parker is opposed. As a practicing 
attorney in the fourth circuit I wish to testify to his high character, his legal 
learning and his fine judicial temperament. It is the duty of a judge to decide 
the law upon the facts, not to make law, and all of Judge Parker's decisions have 
been in accordance with the law. The opposition should quarrel with the law, 
not with Judge Parker. 

Arthur R. Young. 



Raleigh, N. C, April 11, 1930. 
Hon. Lee S. Overman, 

United States Senate, Washington, D. C. 

My Dear Senator: To the North Carolinians who know Judge John J. 
Parker the charge preferred by President William Green, A. F. A., of "bias in 
favor of powerful corporations and against the masses of the people," on the 
part of Judge Parker is utterly without justification and at variance with his 
public record in this State. v 

In 1916 when Judge Parker was the Republican nominee for attorney general 
of North Carolina he devoted his campaign speeches largely to a discussion of 
railroad freight rates and strongly opposed the lease by the State of the Yadkin 
Valley Railroad from Greensboro to Sanford. His argument on this question 
gave him a State reputation and contributed in no small way to his nomination 
for governor in 1920. 

As the gubernatorial candidate for governor in 1920 Judge Parker, although 
probably the youngest man ever nominated by either party for that office in 
this State, not only lifted the campaign to a new, high, clean level but he stood 
forth as the embodiment of progress. During that campaign he was invited to 



CONFIRMATION OF JOHN J. PARKER 17 

speak before the student body of the .State university and he and his Democratic 
opponent both spoke from the same platform in Raleigh on the subject of good 
roads before a large audience, and the road plan outlined by Judge Parker was 
largely embodied in the legislation enacted in 1921 which has resulted in placing 
this State in the forefront with its improved highways. Furthermore, an exami- 
nation of Judge Parker's speeches in the 1920 campaign show that he was a 
pioneer advocate of woman suffrage, and insisted on better schools with increased 
pay for teachers, and improved labor conditions, including workingmen's com- 
pensation and in the important matter of taxation he strongly insisted that land 
was overburdened and that corporate properties were not bearing their share. 
In fact, his position on this question gained him the support of many so-called 
progressive, and gave him the unprecedented Republican vote of 230,000 for 
governor. 

Recently I have visited several cities in eastern North Caroli7ia, and without a 
single exception and without regard to political affiliations the people of this 
State are inexpressibly proud of the appointment of Judge Parker and are unani- 
mous in desiring his confirmation. 

With great respect and best wishes, I remain, 
Yours sincerely, 

Willis G. Briggs. 



Carolina Cotton & Woolen Mills Co., 

Spray, N. C, April 11, 1930. 
Hon. Lee S. Overman, 

Senate Chamber, Washington, D. C. 
Dear Senator Overman: I hope before this that our distinguished fellow 
citizen, Hon. John J. Parker, will have been confirmed for the Supreme Court 
bench. I am afraid that many of us have not realized the amount of opposition 
(on the surface at least) that is being generated against him or we would have 
acted sooner. 

I want to express my genuine gratification at his selection by the President 
and to urge his speedy confirmation. I think it is not only an honor to North 
Carolina for him to receive the appointment but that, because of his wonderful 
ability and sense of fairness, he will be a credit to the Supreme Court. 
With kind regards, I am, very truly yours, 

Luther H. Hodges. 



Winston-Salem, N. C, April 11, 1930. 
Senator Lee S. Overman, 

Washington, D. C. 
My Dear Senator: I am interested in the appointment of Judge John J. 
Parker to the Supreme Court. I have known Judge Parker for 20 years, and 
can testify to his splendid qualifications as a lawyer and to his splendid record 
as a circuit court judge. 

Judge Parker is a man of high character and is honored and respected by all 
who know him. He has a great capacity for work, and in my opinion would take 
rank as one of the great justices of the Supreme Court of the United States. 
Yours truly, 

G. H. Hastings. 



Commercial National Bank, 

Washington, D. C, April 10, 1930. 
Hon. Lee S. Overman, 

» Senate Judiciary Committee, 

Washington, D. C. 
My Dear Senator Overman: I have been watching with much interest the 
hearings of the Judiciary Committee with reference to the nomination of Mr. 
John J. Parker as an Associate Justice of the United States Supreme Court to 
succeed Mr. Justice Edward Terry Sanford, deceased. 

I have not followed personally the career of Mr. Justice Parker, but I happen 
to know that his standing is of the very highest in the State of North Carolina, 
from whence he comes. He has the reputation of dealing out even-handed jus- 
tice, regardless of whether the litigants be rich or poor, which I understand to 
be in accordance with the oath he will be required to take. Mr. Justice Parker 



18 CONFIRMATION OF JOHN J. PARKER 

not only has the ability and the integrity required but he possesses the neces- 
sary judicial temperament to a remarkable degree. 

I have been watching with interest the opposition to Mr. Justice Parker by 
the labor people, but I do not believe it possible for the labor people to get a 
man who would more quickly correct a mistake, if he should make one, than 
Mr. Justice Parker. I believe that if confirmed as an Associate Justice he will 
not only be an honor to his State but to the Nation, and I certainly hope that 
the Judiciary Committee can see its way clear to recommend his confirmation, 
and that action of the committee will be followed by quick confirmation by the 
Senate. 

With high considerations, 
Yours truly, 

Wade H. Cooper, President. 

Raleigh, N. C, April 10, 1930. 
Dear Senator Overman : Mr. Andrews, my two voting daughters, and myself 
wish to add our indorsement to the many of those who believe that the judiciary 
should stand for law and justice and not represent any class legislation. 

We cheerfully indorse the nomination of Judge John J. Parker which is now 
in your hands. 
Sincerely, 

Augusta Webb Ford Andrews. 



Winston-Salem Teachers' College, 

Winston-Salem, N. C, April 9, 1930. 
Senator Lee S. Overman, 

Senate Chamber, Washington, D. C. 
Honored Senator: I am venturing to address you this line to express the 
hope that Judge Parker may be confirmed as Associate Justice of the United 
States Supreme Court. I believe you will join me in the feeling that it may be 
the opportunity for our good old State to have well-merited recognition. 

As a colored man, I am free to say that, in my judgment, there is nothing in 
Judge Parker's judicial record which would warrant opposition from my race, 
and I do not feel that justice for the colored race as citizens would in any way 
be threatened in the hands of Judge Parker. I hope, therefore, that your com- 
mittee will decide to recommend his confirmation, and to follow the recommenda- 
tion through the Senate in order that it may have the Senate's favorable action. 
May I add, Senator, that probably you used to know me years ago when I was 
associated with J. C. Price, as a member of the faculty of Livingstone College. 
I remember how finely you and members of your family encouraged the work 
of the college in those days. 
I beg to remain, 

Your obedient servant, 

S. G. Atkins, President. 



Winston-Salem, N. C, April 10, 1930. 
Senator Lee S. Overman, 

Chairman Judiciary Committee, Washington, D. C. 
Dear Sir: I take great pleasure in writing this letter to you in support of the 
nomination of the Hon. Judge John J. Parker, for Associate Justice of the Supreme 
Court of the United States, and I trust you will give your hearty support to 
Judge Parker and to fight for his confirmation. Judge Parker is one of the finest 
Christian gentlemen in this country to-day, one who is well qualified to serve 
not only as Associate Justice but as Chief Justice as well. Judge Parker is not 
against the colored race at all, and I don't believe that there is a single instance 
in the life of Judge Parker, before or since he has been judge, where he has shown 
in the trial of any case against a member of the colored race a bit of discrimina- 
tion against the same, and as president of the North Carolina State Association 
of Elks, I take great pleasure in indorsing the Hon. Judge John J. Parker, for the 
Associate Justice of the Supreme Court of the United States, and I stand ready 
to give any assistance I can in his behalf. 
Yours very truly, 

E. H. Copeland 



CONFIRM ATION OF JOHN J. PARKER 19 

Greenville, N. C. 
Hon. Lee S. Overman, 

United States Senate, Washington, D. C. 

Dear Senator: I am sure you will not take seriously the opposition of our 
good bishop. 

In the contest waged by many of the negro opponents to the late Hon. Frank 
Linney. The same excuse as to his attitude to the negro. North Carolina has 
led all States in this Union caring for its negro citizenship. Our welfare work 
headed by Lieutenant Oxly, backed by the State administration, our State schools, 
and many men and women are encouraged to do their best for their people. 

Now, then, when we see North Carolina Senators and our friends at home 
speak up without prejudice for the recognition of the State, senseless opposition 
from self-constituted leadership should cease. "The United States of New York " 
should not keep North Carolina from taking her proper place when recognized. 
Moton and Shepard can speak for our people. 

I would, from gratitude to North Carolina leaders, favor Judge Stacey of our 
own supreme court. 

C. M. Epps. 

Senator Overman. I have also a telegram from Mr. James F. 
Barrett, dated Brevard, N. C, April 4, which will also be made a 
part of the record. 

(The telegram referred to is as follows:) 

Brevard, N. C, April 4, 1930. 
Hon. Lee S. Overman, 

Chairman Judiciary Committee United States Senate. 
As a citizen of North Carolina and former President of the North Carolina. 
State Federation of Labor I intreat your committee to report favorably upon the 
nomination of Hon. John J. Parker as Associate Justice of the United States 
Supreme Court and trust that the Senate will confirm this nomination. I fully 
understand the contempt that the great American Federation of Labor has for 
what is known as the "yellow-dog" contract in the coal mines and admire Presi- 
dent Green for his vigilance but knowing Judge Parker as I do I am confident 
that he rendered the only possible decision in the case. Ten years ago when 
Judge Parker was a candidate for Governor in this State he replied promptly 
and fairly to organized labor's questionnaire and repsonded readily to every call 
made upon him by the working masses. It is in fullest confidence that the 
American Federation of Labor and the toiling millions will have in Judge Parker 
on the Supreme Court Bench as fine a friend and stanch advocate as ever donned 
the robe of that mighty office that I urge his confirmation. 

James F. Barrett. 

(Senator Overman submits the following statement of facts as 
found by Judge McClintock in which the court of appeals delivered 
its opinion.) 

Memorandum of points decided by Circuit Judge Parker in International 
Organization United Mine Workers of America v. Red Jacket Consolidated 
Coal & Coke Co. (18 Fed. (2d), 839), circuit court of appeals, fourth circuit, 1927. 

The opinion was written upon a consolidated appeal from a final decree of the 
United States District Court for the Southern District of West Virginia, George 
McClintock judge. 

The original action consisted of 12 suits brought by various coal-mine operators 
in Virginia against the United Mine Workers, district and local unions of the or- 
ganization in West Virginia, and various district and local officers. The com- 
plainants numbered 316, constituting 12 cases, which were consolidated May 
21, 1923, the ultimate printed record comprising 5,000 pages. 

The actions at issue were instituted to restrain interference with the business 
operations of the complainants by the union and its members on the ground that 
the combination presented was a restraint of interstate commerce in violation 
of the Sherman Act. The district judge found this to be a fact and entered a 
final decree and an injunction. 

The appeal was heard by Justices Waddill, Rose, and Parker and the opinion 
written by Judge Parker. Judge Rose concurred in the affirmation of the decree 
of the district court. "He expressed a desire, however, to examine the record 
with a view of satisfying himself whether jurisdiction existed as to the defendants 



20 CONFIRMATION" OF JOHN J. PARKER 

Lewis, Green, and Murray. He died before the opinion could be submitted to 
hirn. " 

The chief points of Justice Parker's decision were as follows: 

1. Held that the extent and general purpose of the United Mine Workers 
did not, as was contended, make the organization as such a conspiracy in re- 
straint of trade or an unlawful organization. On the contrary, the legitimacy of 
the union in itself is fully vindicated and its right to lawfully carry out its legiti- 
mate objects sympathetically stated and sustained. 

2. Held that when turning aside from its legitimate objects and engaging in 
an actual combination or conspiracy in restraint of trade the union "is account- 
able therefor in the same manner as any other organization." The evidence in 
the case, which includes the continuous calling of strikes over a period of years 
to close the mines of the nonunion operators, the expenditure of hundreds of 
thousands of dollars and a campaign of violence and intimidation, demonstrates 
the defendants "have engaged in an actual combination in restraint of trade in 
a manner quite foreign to the normal and legitimate objects of the union." 

3. The defendants contended that coal mining was not interstate commerce 
and therefore a combination to prevent the operation of coal mines was not a 
conspiracy to restrain such commerce. The court held that by the facts found 
and in the light of the decisions of the Supreme Court of the United States in 
the second Coronado case (259 U. S. 344) and United States v. Brims (47 Sup. 
Ct. Rep. 169, 71 Law Ed.), the case clearly demonstrates a production of coal 
within the mines of the plaintiffs amounting to 40,000,000 tons annually, 90 per 
cent of which entered into intertsate commerce; and the clear intent and effect 
of defendants conspiracy was to stop the shipment of such coal in interstate com- 
merce. The defendants intended the necessary consequence of their conduct, 
which was plainly a restraint of interstate commerce in violation of the Sheiman 
Act under continuing decisions of the United States Supreme Court in labor 
and nonlabor cases alike. 

4. Defendants alleged a misjoinder of parties. Held there was a commo/i 
interest among all plaintiffs in the subject-matter of litigation which justified 
joinder of parties under the recognized equity practice. The case presents a 
single controversy leveled against the individual business of the plaintiffs as a 
class, because all were operating in a common territory. All the questions of law 
and the evidence were the same in all cases. Complainants beng the object of 
a joint attack could therefore justly seek the protection of the court in a single 
action against a common defendant since all the issues presented were determin- 
able in a single case. 

5. Objection was made by defendants to the provision in the injunction 
restraining them "from inciting, inducing, or persuading the employees of the 
plaintiffs to break their contract of employment with the plaintiffs." The court 
pointed out that this language is not as broad as that directed to the same pur- 
pose and approved by the Supreme Court in Hitchman Coal & Coke Co. v. 
Mitchell (245 U. S. 229). The doctrine of enjoining interference with a contract 
by means of peaceful persuasion was approved not only in the Hitchman case but 
in American Steel Foundries v. Tri-City General Trades Council (259 U. S. 184) 
and United Mine Workers v. Coronado Coal Co. (259 U. S. 344). 

The union complained that the effect of this language in the decree was to 
forbid defendants, for an indefinite time in the future, to lay before the nonunion 
employees of plaintiffs "any lawful and proper argument in favor of union 
membership." 

"If we so understand the decree, we would not hesitate to modify it," said 
Judge Parker. * * * "To make a speech or to circulate an argument under 
ordinary circumstances, dwelling upon the advantages of union membership, is 
one thing; to approach a company's employees who are working under a contract 
not to join the union while remaining in the company's services, and induce them 
in violation of the contract, to join the union and go on a strike for the purpose 
of forcing the company to recognize the union, or of impairing its power of pro- 
duction, is another and very different thing." 

The court then quotes from the Hitchman case to make the point plain. Judge 
Parker further quoted the Supreme Court in the Hitchman case to show that 
"another fundamental error in defendant's position consists in the assumption 
that all measures that may be resorted to are lawful if they are 'peaceful' — that 
is, if they stop short of using violence or coercion through fear of it. In our opin- 
ion, any violation of plaintiffs' legal rights contrived by the defendants for the 
purpose of inflicting damage, or having that as its necessary effect, is as plainly 



CONFIRMATION OF JOHN J. PARKER 21 

inhibited bv the law as if it involved a breach of peace." (Hitchman Coal & 
Coke Co. v. Mitchell, 245 U. S. 261.) 

6. The court pointed out that the prohibition of section 20 of the Clayton Act 
against enjoining peaceful persuasion applies only to a dispute "concerning terms 
or conditions of employment, between an employer and employee, between em- 
ployers and employees, or between employees or persons employed and persons 
seeking employment." The pending case is between employers and persons, 
neither ex-employees nor persons seeking employment. 

7. A further paragraph of the decree was criticized by defendants because it 
enjoined them from aiding or abetting persons who occupied, or held without 
rights, houses belonging to the complainants. Judge Parker pointed out that 
under the law of West Virginia, when the complainants' employees quit work 
but refuse to surrender the houses of complainants occupied by them, "they be- 
come trespassers on complainants' property." (Angel v. Black Sand Consolidated 
Coal Co. 96 W. Va. 47.) That is, the decree forbids defendants to aid and abet 
any trespasses on the complainants' property in furtherance of the design of the 
conspiracy presented. 

8. The defendants contended that some of the complainants were in "pari 
delicto" with defendants, and therefore should be denied relief because they had 
operated on a union basis during a number of years and also paid the "check- 
off." But Judge Parker pointed out that the check-off is not in itself illegal and 
therefore, by agreeing to pay it, none of the complainants could become con- 
spirators. 

Therefore, the decision, while not approving all the findings of fact made by 
the district court, held the decree to be sustained by the evidence. It was there- 
fore affirmed. 

[Senator Overman also submitted the following memorandum:! 

Memorandum on the Opinion of Circuit Judge John J. Parker in Inter- 
national Organization, United Mine Workers of America v. Red Jacket 
Consolidated Coal & Coke Co. (18 F. (2d) 839) 

This and companion cases were suits brought by coal mining companies in 
West Virginia to enjoin the United Mine Workers, who had declared a strike in an 
attempt to unionize the field, from interfering with the companies' employees by 
violence, threats, intimidation, picketing, and the like, or by procuring them to 
breach their contracts with the plaintiffs. The trial court found that the de- 
fendants were maliciously endeavoring to cause the employees of the plaintiffs 
to violate their contracts of employment with the plaintiffs, and were, by force, 
intimidation, and violence, endeavoring to compel the plaintiffs' employees to 
cease work, and enjoined these acts. 

On appeal to the circuit court of appeals, one question earnestly pressed was 
that the defendants were not interfering with interstate commerce and, therefore, 
the Federal courts had no jurisdiction. The circuit court of appeals held that 
interstate commerce was involved, and based its decision on the Coronado case 
(268 U. S. 295). 

Another point urged by the Mine Workers in the circuit court of appeals was 
that the injunction was too broad and went beyond injunction against force, 
violence, and intimidation, and, in effect, enjoined interference with the plain- 
tiffs' employees by means of peaceful persuasion. The opinion discloses that 
plaintiffs' employees had entered into contracts that they would not join the union 
while remaining* in the plaintiffs' service. In his opinion, Judge Parker says: 

"What the decree forbids is this 'inciting, inducing, or persuading the employ- 
ees of plaintiff to break their contracts of employment'; and what was said in 
the Hitchman case with respect to this matter is conclusive of the point involved 
here." 

The case to which Judge Parker referred was the decision of the Supreme 
Court of the United States in Hitchman Coal & Coke Co. v. Mitchell. 
(245 U. S. 229.) In that case the defendants had peaceably persuaded plaintiff's 
employees to break contracts similar to those involved in the case dealt with by 
Judge Parker. The court in its decision said: 

"Another fundamental error in defendants' position consists in the assumption 
that all measures that may be resorted to are lawful if they are ' peaceable ' — that 
is, if they stop short of physical violence, or coercion through fear of it. In our 
opinion, any violation of plaintiff's legal rights contrived by defendants for the 
purpose of inflicting damage, or having that as its necessary effect, is as plainly 



22 CONFIRMATION OF JOHN J. PARKER 

inhibited by the law as if it involved a breach of the peace. A combination to 
procure concerted breaches of contract by plaintiff's employees constitutes such a 
violation, that is, a violation of the plaintiff's legal right." 

It does not appear from Judge Parker's opinion that any question was raised by 
counsel in the Red Jacket case as to the validity of the contracts between the 
plaintiffs and their employees, by which the latter agreed not to join the union. 
An examination of the briefs of counsel filed in this case, discloses no suggestion 
or contention that the contract between the mining companies and their non- 
union employees, prohibiting the latter from joining the union, was illegal or void 
as against public policy or for any other reason. Counsel, as well as the circuit 
judges, quite correctly considered the Hitchman case conclusive on that point, 
for in its opinion (245 U. S. p. 250) the Supreme Court had declared : 

"That the plaintiff was acting within its lawful rights in employing its men 
only upon terms of continuing nonmembership in the United Mine Workers of 
America is not open to question. * * * The same liberty which enables 
men to form unions, and through the union to enter into agreements with em- 
ployers willing to agree, entitle? other men to remain independent of the union 
and other employers to agree with them to employ no man who owes any alle- 
giance or obligation to the union. In the latter case, as in the former, the parties 
are entitled to be protected by the law in the enjoyment of the benefits of any 
lawful agreement they may make. This court repeatedly has held that the 
employer is as free to make nonmembership in a union a condition of employ- 
ment, as the working man is free to join the union, and that this is a part of the 
constitutional rights of personal liberty and private property, not to be taken 
away even by legislation, unless through some proper exercise of the paramount 
police power." (Adair v. United States, 208 U. S. 161; Coopage v. Kansas, 
236 U. S. 1.) 

"Plaintiff, having in the exercise of its undoubted rights established a working 
agreement between it and its employees, with the free assent of the latter, is 
entitled to be protected in the enjoyment of the resulting status, as in any other 
legal right. That the employment was 'at will,' and terminable by either 
party at any time, is of no consequence. " 

Mr. Justice Brandeis wrote a dissenting opinion in the Hitchman case, but his 
dissent was not based on a suggestion that the contract between the employer 
and its employees not to join the union was unenforceable or void. On the con- 
trary, he said (p. 271) : 

"In other words an employer, in order to effectuate the closing of his shop to 
union labor, may exact an agreement to that effect from his employees. The 
agreement itself being a lawful one, the employer may withhold from the men an 
economic need — employment — until they assent to make it." 

His dissent was based on the proposition, not that the contracts were unlawful, 
but that the union men did not induce the plaintiff's employees to violate their 
terms (p. 272). This contention was expressly rejected in the ruling opinion of 
the court (p. 255). 

Whatever reasons might have been advanced for assailing such contracts on 
grounds of public policy, Judge Parker and his associate judges were constrained 
by the decision of the Supreme Court in the Hitchman case to disregard them. 
No such point was made by counsel in the Red Jacket case who must have 
regarded the right to make such contracts as settled in the Supreme Court of the 
United States. 

On the other question, as to whether any actionable wrong justifying an injunc- 
tion was committed by the union men in attempting by peaceable means to 
induce nonunion employees to violate their contracts of employment by joining 
the union, Judge Parker again bases his decision on the Hitchman case where 
substantially similar contracts were involved and the Supreme Court held that 
peaceful efforts by the strikers to induce the company employees to agree to 
join the union while remaining in plaintiffs' employ were properly enjoined. 

There does not appear to be a point decided in the Red Jacket case on which 
Judge Parker assumed to exercise any independent judgment or opinion. He and 
his associates felt bound by the Supreme Court decisions. In holding the con- 
tracts valid and that peaceable efforts to induce the nonunion men to break them 
were properly enjoined, he merely quoted rulings to that effect in the Hitchman 
case. Nowhere are pressed or indicated any personal views about any of these 
questions. He had no freedom of judgment on any of them; he was bound by the 
decisions of the Supreme Court, which he could not refuse to follow. The Hitch- 
man case itself had originated in the Circuit Court of Appeals of the Fourth Cir- 
cuit before Judge Parker became a member of that court, the Circuit Court of 



CONFIRMATION OF JOHN J. PARKER 23 

Appeals had denied an injunction, and its decision was reversed by the Supreme 
Court in the Hitchman case. What would have been the fate of a decision by 
Judge Parker in the Red Jacket case contrary to that which he rendered is indi- 
cated by the fact that the United Mine Workers filed a petition for a writ of 
certiorari with the Supreme Court of the United States, asking that court to 
review Judge Parker's decision, and the petition for certiorari was denied (275 
U. S. 536). 

To refuse to confirm the nomination of Judge Parker for his decision in the 
Red Jacket Coal Co. case will amount to refusing to confirm him because he 
followed and^ gave binding effect to the decisions of the Supreme Court of the 
United States. At least he considered the cited decisions of the Supreme Court 
to be controlling in the Red Jacket case, and no one has yet pointed out any 
ground on which the Hitchman case and the Red Jacket case may properly be 
distinguished. 

The question is not whether the Supreme Court was right or wrong in its con- 
clusion. The question is whether Judge Parker was dealing with points which 
had been settled by the Supreme Court which he was bound, under his oath of 
office, to follow. He and his two associates put their decision upon the controlling 
authority of the Hitchman case, as they were constrained to do, but even in this 
they were careful not to go beyond the dictates of that decision. It was argued 
that the decree in effect forbade any lawful or proper argument addressed to 
plaintiffs' employees in favor of union membership. Answering this contention, 
Judge Parker said: 

"If we so understood the decree, we would not hesitate to modify it. As we 
said in the Bittner case, there can be no doubt of the right of the defendants to 
use all lawful propaganda to increase their membership. * * * What the 
decree forbids is this 'inciting, inducing, or persuading the employees of plaintiff 
to break their contracts of employment'; and what was said in the Hitchman case 
with respect to this matter is conclusive of the point involved here." 

STATEMENT OF WILLIAM GREEN, PRESIDENT AMERICAN FED- 
ERATION OF LABOR 

Senator Overman. Mr. Green, I have statement from you this 
morning, which I intended to put in the record, but since you are 
here, I suppose you want us to hear it? 

Mr. Green. Gentlemen of the committee, I am pleased to come 
this morning and present to you in the name and behalf of the Ameri- 
can Federation of Labor its opposition to the confirmation of Judge 
Parker, as a member of the Supreme Court of the United States. 

I speak for the American Federation of Labor 

Senator Overman. What position do you hold now, Mr. Green? 

Mr. Green. I am president of the American Federation of Labor, 
and as president of the American Federation of Labor I speak for 
that federation, having been authorized to file our objection to the 
confirmation of Judge Parker by the executive council of the Ameri- 
can Federation. 

Senator Overman. That means all the affiliated associations? 

Mr. Green. All the affiliated associations affiliated with the 
American Federation of Labor, and in addition, may I state, that 
I have been authorized by the officers of the railroad organizations 
affiliated with the American Federation of Labor, the Brotherhood 
of Railway Trainmen, the Order of Railway Conductors, the Brother- 
hood of Locomotive Engineers, and the Brotherhood of Locomotive 
Firemen, to represent them and file their objection along with the 
objection of the American Federation of Labor to the confirmation of 
Judge Parker, so that I am appearing in behalf of the American 
Federation of Labor and the transportation organizations of the 
United States, all of us having arrived at one common decision upon 



24 CONFIRMATION OF JOHN J. PAEKEE 

this important matter of united opposition to the confirmation of 
Judge Parker. 

Now, first of all, may I submit to you the basis of our opposition? 
It is embodied in an official communication which I transmitted to 
all the honorable members of this committee this morning, except 
perhaps Senator Hebert, because I was not advised that he was a 
member of the committee. However, I would like you, Senator, to 
accept this communication as addressed to you also. 

The working people of the United States are deeply interested in 
the appointment of members to the Supreme Court of the United 
States. This interest is based very largely upon the fact that many 
of the decisions of the Supreme Court very vitally affect the well- 
being and happiness of millions of working men, their wives and their 
families. This is particularly true when we consider the fact that as 
a result of modern industrial expansion and growth many economic 
problems are developed which enter into the consideration of numerous 
legal questions which finally reach the Supreme Court for considera- 
tion and decision. 

Labor firmly believes that those who are appointed to serve as 
members of the Supreme Court of the United States should possess a 
knowledge and understanding of modern day economic questions, of 
human relations in industry, and should possess a trained mind 
sympathetic toward the hopes and aspirations of the masses of the 
people. 

The officers and members of the American Federation of Labor 
and of these brotherhood organizations, to which I referred, are of 
the opinion that Judge John J. Parker, recently appointed to be an 
Associate Justice of the Supreme Court, does not possess the requisite 
qualifications to serve in such a responsible position. For that reason 
the American Federation of Labor and those associated with it 
formally and most vigorously protest the confirmation of the ap- 
pointment of Judge Parker by the United States Senate to be a 
member of the Supreme Court of the United States. 

Our action in opposing the confirmation of the appointment of 
Judge Parker is based upon a study of his qualifications, his life's 
environment, his point of view regarding human relations in modern 
industry, and his judicial attitude toward economic and industrial 
problems which seriously affect the material and moral well-being of 
working men and women as shown in the decision which he rendered 
in the case of the United Mine Workers of America v. The Red Jacket 
Consolidated Coal & Coke Co., and in the opinion in which he con- 
curred as rendered in the Bittner v. West Virginia-Pittsburgh Coal 
Co. case. These opinions were rendered and concurred in by Judge 
Parker as a member of the Fourth Circuit Court of Appeals. 

In the Red Jacket Consolidated Coal & Coke Co. case Judge Parker 
wrote an opinion in which he affirmed and sustained an injunction 
issued by Judge McClintic of the Federal District Court of West 
Virginia, restraining the officers and members 'of the United Mine 
Workers of America from soliciting men employed by the Red Jacket 
Consolidated Coal & Coke Co., and numerous others, to exercise their 
common, inherent, and legitimate right to join a trade union. The 
effect of this injunction was to make criminals out of law-abiding, 
honest, loyal American citizens if they requested, in the exercise of 
peaceful and law-abiding methods, working men to join with them 



CONFIRMATION OF JOHN J. PARKER 25 

in a labor organization which constituted an integral part of the 
American Federation of Labor. 

The late distinguished Senator Robert M. La Follette, who served 
for so many years as an influential member of the United States 
Senate, stated that Federal Judge McClintic, of West Virginia, who 
issued the original injunction in the Red Jacket Consolidated Coal 
& Coke Co. case and whose action was approved and sustained by 
Judge Parker, had shown himself to be a petty tyrant and an arrogant 
despot. 

That is the language of the late Senator La Follette. 

It is alleged that the opinion of Judge Parker was based upon the 
existence of what labor appropriately terms "yellow-dog" contracts. 
These so-called contracts provide that the employees of the coal 
company can not join a labor union while serving as employees of 
the company. Judge Parker held that because these "yellow-dog" 
contracts were in effect it was unlawful for representatives of organized 
labor to unionize the workers who were parties to the "yellow-dog" 
contracts, or to solicit them to join a trade union without the coal 
company's consent. 

The injunction issued by Judge McClintic and which Judge Parker 
approved in the Red Jacket Consolidated Coal & Coke Co. case, was 
most sweeping in its terms and comprehensive in its application. In 
effect it reduced the workers employed by these numerous coal com- 
panies represented in the Red Jacket Consolidated Coal & Coke Co. 
case to a condition approximating industrial servitude. Trade union 
representatives were denied the right to talk to them and to peace- 
fully persuade them to join a trade union. They could not be asked 
to join a union and in that way exercise the right of collective action 
comparable to the exercise of the right to organize exercised by those 
corporations which employed them. 

The injunction issued by Judge McClintic and which was approved 
and confirmed by Judge Parker is still in effect. It operates as the 
law of the land in southern West Virginia. As a result we behold an 
economic condition in the mining towns controlled by those corpora- 
tions which sought and secured the injunction, shocking in the ex- 
treme. The operation of the injunction has served to make serfs out 
of the miners. Their condition is hopeless. Their wages are below a 
subsistence level and their conditions of employment are un-American 
and intolerable. The officers and members of organized labor would 
help them through organization and cooperation, but they dare not 
because if they did they would be punished for violating, not the law 
of the land, but a judge-made law confirmed and approved by Judge 
Parker. 

It will be no doubt alleged by the friends of Judge Parker that his 
decision was based upon a rule laid down by the Supreme Court of 
the United States in the celegrated Hitchman case. The so-called 
"yellow-dog" contract was first brought to public notice when this 
decision in the celebrated Hitchman case was rendered by the Supreme 
Court of the United States in 1917, 13 years ago. Since that time 
many economic, industrial, and social changes have taken place. It 
is fair to assume that the late Chief Justice Taft had arrived at the 
conclusion that "yellow-dog" contracts were inequitable and that em- 



26 CONFIRMATION OF JOHN J. PARKER 

ployees subjecting themselves to the signing of such contracts did so 
under duress and compulsion. 

Senator Borah. You say it is fair to presume that. Did he ever 
say anything to justify that presumption? 

Mr. Green. I am going to quote what he said that we interpret 
to mean that. 

Senator Borah. In the Tri-City case? 

Mr. Green. In the Tri-City case. 

It is clearly evident from what Chief Justice Taft stated in the 
Tri-City case that he recognized the fact that collective bargaining 
on the part of trade unions was necessary to place an employee on a 
plane of equality with an employer. In rendering his decision in the 
Tri-City case he used the following language : 

A single employee was helpless in dealing with an employer. He was de- 
pendent ordinarily on his daily wage for the maintenance of himself and family. 
If the employer refused to pay him the wages that he thought fair, he was never- 
theless unable to leave the employ and to resist arbitrary and unfair treatment. 
Union was essential to give laborers opportunity to deal on an equality with 
their employer. 

I construe that to mean that Justice Taft, when he rendered his 
decision in the Tri-City case, believed that the time had arrived in 
the development of modern industry and in the expansion and growth 
of the Nation, that union among employees was essential, not only 
necessary, but essential, in order that they might deal with powerful 
corporations and powerful employers. 

Senator Borah. I think he held that very clearly, but he said 
also: 

It is idle to talk of peaceful communication in such place and under such con- 
ditions. The name "picket" indicated a militant purpose, inconsistent with 
peaceable persuasion. 

Mr. Green. He was dealing with the picketing. 
Senator Borah. Exactly. He says: 

Persuasion or communication attempted under such conditions is anything 
but peaceable and lawful. 

Mr. Green. Well, we can't see it quite that way. Of course, 
Senator, we always claim the right to our opinion and concede to 
everyone else the same, but we think this language is susceptible of 
the interpretation we place upon it; that he had arrived at the con- 
clusion, clear and distinct, that union was necessary in order for the 
employees to deal fairly with the employers. 

Senator Borah. I am not passing on the decision rendered by 
Judge Parker, but what I was trying to satisfy myself concerning 
was whether or not it was to be distinguished from the decision 
rendered by Judge Taft. 

Mr. Green. I hope that I may be able to bring that to you in a 
clearer way before I am through. 

Again I quote from a statement made by the late Chief Justice Taft 
relative to injunctions as most illuminating and interesting in the 
consideration of the fitness and qualifications of Judge Parker to 
serve as a member of the Supreme Court of the United States. 

This is quoting from Judge Taft again. 

Senator Overman. What case? 



CONFIRMATION" OF JOHN J. PARKER 27 

Mr. Green. This was in an article that he prepared for the Public 
Ledger of Philadelphia. 

The usefulness of the injunction in the coal strike should not mislead reac- 
tionary employers into the belief that it is a panacea for labor troubles. It has 
worked well in this case (referring to the coal case in 1919) because public opinion 
has sanctioned its use by the courts at the instance of the Government in defense 
of the lives of the whole people. But it was only justified by the great emergency, 
and was only made necessary by the incredible sense of irresponsible power of the 
strike leaders. Labor troubles are not to be permanently solved in any such way. 
Government of the relations between capital and labor by injunction is a solecism. 
It is an absurdity. Injunctions in labor troubles are merely the emergency brakes 
for rare use and in case of sudden danger. Frequent application of them would 
shake to pieces the whole machine. They should be availed of only when the 
soviet policy of a selfish aggregation of men pushes society against the wall into 
a desperate situation. 

I think that language is very significant as coming from the late 
Chief Justice Taft. 

Senator Borah. Well, that was written while he was in private 
life. 

Mr. Green. I am not sure, but it is taken from an article that he 
wrote. 

Senator Borah. That was written while he was in private life. 
He afterwards wrote this tri-city decision. 

Mr. Green. I presume he entertained the same view in private 
life as when he was on the bench. 

Senator Borah. I presume so; but yet he joined in the Tri-City 
case. 

Mr. Green. That would seem a little contradictory, then, 
wouldn't it? 

Senator Borah. It would seem to be so. 

Mr. Green. Well, you accept our point of view on it, and let the 
other go. 

The significant fact connected with the opinion of Judge Parker 
rendered in the Red Jacket Consolidated Coal & Coke Co. case is 
not so much that he followed the decision of the Supreme Court in 
the Hitchman case, but that he has shown in the opinion he wrote 
and through his judicial attitude that he is in entire sympathy and 
accord with the legal and economic policy embodied in the injunction 
issued by Judge McClintic. Believing that these conclusions are 
correct, Labor is of the opinion that the appointment and confirmation 
of Judge Parker means that another injunction judge will become a 
member of the Supreme Court of the United States. As a result, 
the power of reaction will be strengthened, and the broad minded, 
humane, progressive influence so courageously and patriotically 
exercised by the minority members of the highest judicial tribunal 
in the land correspondingly weakened. 

There is the kernel in the nut. 

Labor has always held that the so-called "yellow-dog" contract 
is socially and morally wrong and because it lacks mutuality and is 
contrary to public policy it is legally indefensible. These "yellow- 
dog" contracts are forced, secured under duress and compulsion. 
There is no bargaining and there can be no equality in bargaining as 
between employer and employee in the consummation of a "yellow- 
dog" contract. Invariably the worker is given the alternative of 
signing a "yellow-dog" contract in order to secure employment, or 



28 CONFIRMATION OP JOHN J. PARKER 

refuse to do so and as a consequence remain idle suffering from want 
and hunger. In most instances, because of economic pressure and 
necessity, he is compelled to sign the "yellow-dog" contract in order 
to secure employment. There is no freedom of action. The worker 
is the victim. The power of the corporation is against him and 
even though he smarts under a sense of injustice he reluctantly signs 
the "yellow-dog" contract. Hunger and necessity very frequently 
compel him to do so. Certainly no one can contend that a contract 
forced under such circumstances is just or that it conforms to a sound 
public policy. 

The purpose of the employer in requiring employees to sign a 
contract in which they agree as a condition of employment that they 
will not join a union, is obvious. The employers know full well that, 
as Judge Taft stated, the individual is helpless and because he is 
helpless the corporation can exercise economic control over him. It 
is to the financial interest of the corporation to keep him indivualistic 
and economically unrelated to his fellow workers. Wages may be 
fixed and conditions of employment prescribed in accordance with the 
will and decision of the corporation. The "yellow-dog" contract is 
the medium through which this purpose is accomplished. This is 
unjust, and any member of the judiciary who lends himself to the 
imposition of such an injustice through the submission of an opinion 
which legalizes and perpetuates the "yellow-dog" contract is, in 
the opinion of labor, unfit to serve as a member of the Supreme 
Court of the United States. 

Senator Overman. Mr. Green, I have some letters and editorials 
in which it is said the protest of your order, the American Federation 
of Labor, was rather against the Red Jacket contract than Judge 
Parker. Judge Parker followed the Hitchman case, and you are 
protesting against the law laid down in the Hitchman case and other 
cases. It isn't so much against Judge Parker, as against this system, 
that which has been announced by the Supreme Court. 

Mr. Green. No, we don't want to be placed in that light. The 
Hitchman decision — I will try to make it plain — was the Dred Scott 
decision to labor. We hold that it is indefensible; that it is not in 
accordance with sound public policy, as I have said. That is true, 
but that is beside this situation. What I just stated in the pre- 
ceeding paragraph was not so much that Judge Parker followed 
the Hitchman decision as laid down by the Supreme Court, but 
that he shows himself as in entire sympathy with that decision, 
and that is our objection to Judge Parker. 

We feel that it would be unwise, that it would not be in the interest 
of the common welfare, and the common people, the great mass of 
the people, to strengthen the reactionary side of the Supreme Court, 
by adding another to that powerful influence. 

Senator Overman. Well, that is what has been suggested to me; 
that your order is very much opposed to the principle laid down by 
the Supreme Court in this case. 

Mr. Green. Well, we are very strongly opposed to that. 

Senator Overman. Your objection is to the policy rather than to 
Judge Parker himself, but Judge Parker was bound by the facts as 
found by Judge McClintic. Do you admit that that is so, that in 
rendering his decision he was bound by the facts found by Judge 
McClintic? 



CONFIRMATION OF JOHN J. PARKER 29 

Mr. Green. I think I can show where he did not follow exactly the 
Hitchman decision, and I am going to endeavor to show you the 
position taken by some members of the judiciary, in cases where they 
think they are bound to follow precedents. I want to quote from a 
statement made by the late Justice Sanford, in the Bedford Cut 
Stone case. He said: 

I concur in this result upon the controlling authority of Duplex Co. v. Deering 
(254 U. S. 443), etc., which, as applied to the ultimate question in this case, I am 
unable to distinguish. 

He concurred in it, but apparently reluctantly. 

There is no such evidence found in the decision rendered by Justice 
Parker in the Red Jacket case. 

I want to touch upon what we call the fundamentals in the Yellow- 
Dog Contract case just for a moment, in order to bring that to your 
attention. 

Senator Borah. May I ask a question before you start in? 

Mr. Green. Yes, sir. 

Senator Borah. Has the validity of the "yellow-dog" contract 
standing alone ever been tested? 

Mr. Green. There is a case now pending in the Supreme Court 
of Wisconsin, I think, based upon the constitutionality of a statute 
in Wisconsin recently enacted by the Wisconsin State Legislature, 
which invalidates and makes illegal "yellow-dog" contracts in that 
State. 

Senator Borah. I have never been able to determine for myself 
what consideration there was for a "yellow-dog" contract. I have 
been at a loss to know why the attorneys who were fighting those 
cases did not test the validity of it on the ground there was no con- 
sideration for a man agreeing to remain out of the union. What 
possible consideration can flow to a man for agreeing not to join a 
union? What mutuality? 

Mr. Green. I can not see any. 

Senator Borah. The question is why wasn't that point tested? 
Judge parker, taking the "yellow-dog" contract as valid, sustained the 
injunction to the effect that union men could not ask nonunion men 
to break their contract, but it seems to me the way to have reached 
that question was to test the validity of the contract upon which they 
were basing such an injunction. I am speaking without full investiga- 
tion. 

Mr. Green. That might have been the proper procedure, and that 
point may have been raised in some of these cases. I have not gone 
into that. It may have been raised. I am not sure. I think it 
was raised in the Hitchman case. But we believe that the finding 
of the court in the Hitchman case, was based upon a different set of 
facts than was presented in the Red Jacket case, and that is the point 
I want to bring to you later. 

Senator Hebert. Is it your contention that Judge Parker deviated 
from the decision in the Hitchman case? 

Mr. Green. No. I don't contend that he deviated from that 
decision, but the point I have made is this — there are two points I 
am making in connection with that. First, that the "Red Jacket" 
decision that he approved, and which he wrote, is based upon a 

107150—30 3 



30 CONFIRMATION OF JOHN J. PARKER 

different set of facts. It is not entirely in accordance with the rule 
laid down by the Supreme Court in the Hitchman case. k 

Secondly, that an examination of the his opinion leads us to the 
conclusion that he is in entire accord with the legal principle involved 
in the "Yellow Dog" contracts. 

Senator Borah. I wish you would develop that latter proposition, 
because I am interested in it. 

Senator Hebert. I was going to say, you will, of course, develop 
that? 

Mr. Green. I will try to. 

Labor has always held that the so-called "Yellow Dog" contract 
is socially and morally wrong and because it lacks mutuality and is 
contrary to public policy it is legally indefensible. These "Yellow 
Dog" contracts are forced, secured under duress and compulsion. 
There is no bargaining and there can be no equality of a "Yellow Dog" 
contract. Invariably the worker is given the alternative of signing 
a "Yellow Dog" contract in order to secure employment, or refuse to 
do so and as a consequence remain idle, suffering from want and 
hunger. In most instances, because of economic pressure and neces- 
sity, he is compelled to sign the "Yellow Dog" contract in order to 
secure employment. There is no freedom of action. The worker is 
the victim. The power of the corporation is against him and even 
though he smarts under a sense of injustice he reluctantly signs the 
"Yellow Dog" contract. Hunger and necessity very frequently 
compel him to do so. Certainly no one can contend that a contract 
forced under such circumstances is just or that it conforms to a sound 
public policy. 

The purpose of the employer in requiring employees to sign a con- 
tract in which they agree as a condition of employment that they will 
not join a union, is obvious. The employer knows full well that, as 
Judge Taf t stated, the individual is helpless, and because he is helpless 
the corporation can exercise economic control over him. It is to the 
financial interest of the corporation to keep him individualistic and 
economically unrelated to his fellow workers. Wages may be fixed 
and conditions of employment prescribed in accordance with the will 
and decision of the corporation. The "yellow-dog" contract is the 
medium through which this purpose is accomplished. This is unjust, 
and any member of the judiciary who lends himself to the imposition 
of such an injustice through the submission of an opinion which legal- 
izes and perpetuates the "yellow-dog" contract, is in the opinion of 
labor, unfit to serve as a member of the Supreme Court of the United 
States. 

Senator Hebert. May I interrupt you right there? Do these 
"yellow-dog" contracts contain provisions for a fixed compensation 
or a minimum wage? 

Mr. Green. The wages are not touched at all, Senator. It is 
merely a blank form handed to the worker when he appears at the 
window for employment, and that blank form prescribes that "while 
I am in your employ, I will not join a union." 

Senator Borah. That is perfectly clear to me, that there is utterly 
no consideration for that kind of a contract. The consideration 
running between the employer and the employee is the wages and the 
service which he renders? 

Mr. Green. Yes. 



CONFIRMATION OF JOHN J. PARKER 31 

Senator Borah. And when he appears at the window and is asked 
to sign this contract, what possible consideration can there be for 
giving up that right? 

Mr. Green. None whatever. 

Senator Borah. Well, has it been tested? 

Senator Hebert. And that is not mentioned in this contract. 
There is no consideration mentioned for his abstaining from joining 
a union. That is not fixed in this agreement he signs? 

Mr. Green. No; just simply that he will not join a union while in 
the employ of this company. He surrenders his right, a legal right, 
an inherent right. You can imagine a man going around, searching 
for work. He is face to face with want, and many of them sign it 
without knowing what it is, in order to get the work. 

Senator Borah. He isn't the only man that is interested, and the 
employer is not the only man interested. It is contrary to public 
policy; the public is interested. 

Mr. Green. That is the very point I want to show. It is a matter of 
public interest. You go into southern West Virginia now and behold 
the economic effect of this injunction that is in effect permanently as 
the law of the land, and you can not go in and help them to raise 
themselves out of their condition of industrial servitude without 
violating this injunction. 

Senator Borah. The entire community is interested in the condi- 
tion of its working people. 

Mr. Green. Yes. 

Senator Borah. And anything that militates against a reasonable 
use of the powers they have to bring about reasonable compensation 
is against public policy. 

Mr. Green. W r e agree with you heartily. 

Labor wishes its position regarding the exercise of the equity 
power, the issuance of injunctions by courts of equity, to be thoroughly 
and rightfully understood. We are not opposed to the exercise of the 
equity power when it is necessary to protect physical tangible 
property from irreparable injury when there is no remedy at law. 

I want to make the position of labor clear on that point. 

We believe that an examination of the origin and use of the equity 
power will show that it was intended that it should be exercised 
most carefully and resorted to only in extreme and urgent cases. 
The broad and extended use of the powers of equity in human rela- 
tions as between employers and employees has aroused keen resent- 
ment and social hate in the hearts and minds of the masses of the 
people. The workers of Great Britain, from which country we 
inherited our system of law and equity, have never been harassed 
or restrained in the exercise of the normal functions of trade-unions 
through the issuance of such an injunction as was approved and 
sustained by Judge Parker in the Red Jacket Consolidated Coal & 
Coke Co. case. No such injunction could be issued or ever would 
be issued against the workers of Great Britain. In the light of this 
fact, why should the workers of America be subjected to such an 
injustice? 

While labor does not oppose the use of the injunction and a proper 
exercise of the equity power for the protection of physical, tangible 
property, it does resent the use of the writ of injunction for the 
purpose of preventing working men and women from exercising 



32 CONFIRMATION" OF JOHN J. PAEKEE 

their common, ordinary, and inherent right to join trade-unions for 
mutual protection and helpfulness. 

Senator Borah. And to persuade others to join. 

Mr. Green. Yes; and to persuade others to join. Those are com- 
mon rights we feel should not be restrained through the use of the 
equity power. 

Senator Borah. You do not contend that an injunction should not 
be applied where there is physical injury, threatened physical injury 
to life and to property? 

Mr. Green. No, sir; we are in accord with that, as I have made 
plain. 

A further fact stands out prominently in the decision of Judge 
Parker in the Red Jacket Consolidated Coal & Coke Co. case, and 
which labor regards as of very great importance. In the decision 
rendered by Judge Parker the United Mine Workers were restrained 
from extending financial assistance to the employees of the Red 
Jacket Consolidated Coal & Coke Co., who occupied the houses of the 
corporation in case said employees exercised the right to join the union. 

They can't pay their house rent. 

The United Mine Workers were forbidden to pay the rent of the 
workers or to extend financial assistance in case they joined the union. 
There has never been a more glaring example of a judicial disregard 
of human rights and a corresponding regard of property rights as 
transcendent over human rights than is shown in the judicial attitude 
of Judge Parker as expressed in the written opinion he rendered in 
the Red Jacket Consolidated Coal & Coke Co. case. 

Regarding the policy pursued by many members of the judiciary 
in the exercise of the equity power in labor controversies, may I quote 
from a statement made by Senator Pepper, a former distinguished 
Member of the United States Senate, in an address which he made at 
a joint meeting of the Pennsylvania Bar Association on July 8, 1924: 

In the Senate one quickly becomes aware of the existence throughout the 
country of a sentiment on this subject which, if unchecked, may easily develop 
into a revolutionary sentiment. I accordingly addressed a letter to every United 
States district attorney asking him to secure from the clerk's office in his district 
a copy of such injunction orders made by the United States court in his district 
during the last two years. Courteous attention to my request has supplied me 
with a most interesting mass of material. A study of these orders discloses an 
evolution mildly comparable with the growth of the corporate mortgage. The 
injunction orders have become more and more comprehensive and far-reaching 
in their provisions until they culminate in the shopman's injunction order already 
referred to. 

He was referring to the order in the shopmen's strike. 

Every thoughtful lawyer who has not already done so should read that order 
and meditate upon its significance. In so doing he should have in mind that 
during the shopmen's strike in 1922 nearly every one of the 261 class 1 railroads 
and a number of short-line railroads applied for injunctions in the various Federal 
courts. No applications were denied. In all nearly 300 were issued. 

Naturally enough, during the past two decades there have been bitter protests 
from the ranks of labor. To the striker it seems like tyranny to find such vast 
power exercised, not by a jury of one's neighbors but by a single official who is 
not elected but appointed, and that for life, and whose commission comes from a 
distant and little-understood source. 

Strong language ! 

As a supplement to this letter of protest against the appointment 
of Judge John J. Parker as a member of the Supreme Court of the 



CONFIRMATION OF JOHN" J. PARKER 33 

United States, I submit a short historical review of the United 
Mine Workers of America v. Red Jacket Consolidated Coal & Coke 
Co. case and of the Bittner v. West Virginia-Pittsburgh Coal Co. 
case herein referred to. There is incorporated in this review a copy 
of the final decree entered in these cases as reported and directed 
by the Fourth Circuit Court of Appeals of which John J. Parker is 
a member. 

While we in no way question the integrity, the honor, of the 
academic qualifications of Judge John J. Parker, we hold that he 
has shown a judicial state of mind which betrays a judicial and 
mental bias in favor of powerful corporations and against the masses 
of the people. We feel that the Supreme Court of the United States, 
exercising such tremendous powers as are conferred upon it by the 
Constitution of the United States, should be composed of broad- 
visioned men who have had a wide experience in human affairs and 
who, because of such wide experience, are able to dissociate them- 
selves from a provincial environment and to possess a comprehensive 
understanding of human relations in industry, of social and economic 
problems which have arisen out of the development of modern 
industry and of economic life. We wish to see the greatest legal 
tribunal in all the world humanized and liberalized. 

For the reasons herein set forth, and for the further reason that 
we are certain that Judge John J . Parker does not possess the qualifi- 
cations, the fitness, training, and experience requisite to membership 
on the Supreme Court of the United States, I herewith submit in the 
name and in behalf of the Executive Council of the American Federa- 
tion of Labor, the transportation brotherhoods, and of millions of 
workers whom we have the honor to represent, our protest against 
the appointment and confirmation of Judge John J. Parker as a 
member of the the Supreme Court of the United States, and we appeal 
to the members of the United States Senate to vote against his con- 
firmation. 

Now, may I supplement this statement by calling your atten- 
tion 

Senator Borah. Mr. Green, may I read a paragraph here that I 
would like to have go in the record? I am reading from the decision 
of Judge Parker: 

With respect to the second paragraph complaint is made that it restrains 
defendants "from inciting, inducing, or persuading the employees of the plaintiff 
to break their contract of employment with the plaintiff." 

As I see it, the gist of this case is that they issued an injunction 
against union men trying to persuade nonunion men to break an 
illegal contract. In other words, the "yellow dog" contract was the 
contract which was involved, and they were using the injunction 
against men exercising their power of persuasion to violate that con- 
tract. That is the gist of this case, isn't it? 

Air. Green. Yes, I think so: but this is an observation I wish to 
make in connection with that matter. First of all, we do not feel that 
he followed the decision in the Hitchman case, and that I am going to 
bring to your attention in just a moment. Second, we do not believe 
that the fact warranted the opinion delivered by Judge Parker. 
Third, we hold that the "yellow-dog" contract is illegal. There is no 



34 COlSTFIRMATIOiSr OF JOHN J. PAEKEE 

mutuality in it. It is secured under duress and compulsion, and there- 
fore is contrary to sound public policy. 

Here is the historical review to which I referred, of the United 
Mine Workers of America v. The Red Jacket Consolidated Coal & 
Coke Co., and of the Bittner v. West Virginia-Pittsburgh Coal Co. 
I will not burden you by reading it. but will put it in the record, be- 
cause I presume you will examine this. 

Senator Overman. It may be made a part of the record. 

(The opinions referred to are as follows:) 

UNITED MINE WORKERS OF AMERICA V. RED JACKET CONSOLIDATED COAL & COKE 

CO. (18 FED. (2D) 839.) 

This case, with which were joined 11 other cases, arose out of the efforts of 
the United Mine Workers of America to organize mine workers employed in the 
West Virginia coal fields. There were 12 suits instituted by various owners 
and operators of coal mines in West Virginia against the United Mine Workers 
of America, the district and local unions of that organization in West Virginia 
and a number of its international, district, and local union officers. The com- 
plainants numbered 316 in all and embraced most of the nonunion coal com- 
panies operating in the southern West Virginia field. The suits were instituted 
to restrain interference with the complainants' business on the ground that the 
interference complained of constituted a restraint of interstate trade and commerce 
in violation of the Sherman Act. 

The suit of the Red Jacket Coal Co. was instituted September 30, 1920. This 
company operates in Mingo County, W. Va. A strike was declared against the 
company about July 1, 1920, and a suit was instituted to enjoin the union and 
its officers and members from interfering with the company's employees by 
violence, picketing, etc., or by procuring them to breach their contracts of 
employment. The suit of the Borderland Coal Co. was instituted September 
26, 1921. This company also operated in Mingo County and it asked relief 
not only for itself but also for 62 other companies operating in the same territory 
and who were actually made parties to the suit on April 8, 1922. Practically 
the same relief was sought as in the Red Jacket case. 

On April 1, 1922, while the strike order of July 1, 1920, in Mingo County was 
still in effect, the union called a nation-wide strike because of a failure to nego- 
tiate a basic wage agreement with the union operators of the central competitive 
field, comprising the States of Illinois, Indiana, Ohio, and western Pennsylvania. 
The strike call was issued to nonunion as wed as to union members, and measures 
were taken to make it effective throughout the nonunion fields of West Virginia, 
as well as in the Kanawha and New River fields where the union had formerly 
been recognized, but where operation had been commenced on a nonunion basis 
under contracts between the operators and their employees. Nine suits were 
instituted by the operators to enjoin the union, its officers and members from 
interfering with their employees and the operation of their mines, and the same 
relief was asked as in the Red Jacket and Borderland suits. In each of these 
suits a number of companies operating in the same general neighborhood joined 
as complainants and as stated, 62 companies joined as complainants in the 
Borderland suit which had been instituted as a previous date. 

Temporary injunctions were secured in all of these suits. In a number of them, 
appeals were taken to the Circuit Court of Appeals for the Fourth Circuit and the 
injunctive orders of the district court were modified. 

The general strike of 1922 was settled by the Cleveland wage agreement in 
August of that year, but the strike was continued against the nonunion operators 
of West Virginia. Certain companies which had joined as complainants in some 
of the bills, entered into wage agreements recognizing the union and withdrew as 
complainants. On September 18, 1922, the Carbon Fuel Co. filed a suit against 
the defendants in the other cases and the companies who had withdrawn from the 
suit as complainants, asking the same relief as was asked in the other suits and 
also that these companies be enjoined from paying to the United Mine Workers, 
the "check off" provided for in their contract. A preliminary injunction was 
granted, which, on appeal, was modified by this court. 

For such modification orders see Keeney v. Borderland Coal Corporation (282 
Fed. 269) ; Dwyer v. Alpha Pocahontas Coal Co. (282 Fed. 270) ; United Mine 
Workers of America, v. Leevale Coal Co. (285 Fed. 32) ; and United Mine Workers 



CONFIRMATION OF JOHN J. PARKER 35 

of America v. Carbon Fuel Co. (288 Fed. 1020). All of these decisions were 
rendered before Judge Parker was appointed a member of the Circuit Court of 
Appeals for the Fourth Circuit. 

On May 21, 1923, the district court entered an order consolidating all 12 of the 
cases and the defendants having already moved to dismiss for misjoinder of 
parties plaintiff, objected to the consolidation and excepted to the order. The 
district court on October 16, 1925, made an extended findings of fact and in each 
case entered the same final decree, from which the defendants have appealed. 

This district judge found that the defendants had conspired to restrain inter- 
state trade and commerce in coal and that at the time these suits were instituted, 
the United Mine Workers of America were attempting unlawfully and malici- 
ously to induce and cause the employees of the plaintiffs to violate their contracts 
of employment with the plaintiffs; to compel the employees of said plaintiffs, by 
intimidation and violence to cease working for the plaintiffs and to become mem- 
bers of the union; to compel the plaintiffs to recognize the union and to deal with 
it and operate their mines under union conditions or to close down such mines. 
The district judge further found that it was part of the policy of the union to 
have its members hold possession of dwelling houses belonging to the companies 
which were constructed and maintained by them for the use of their employees 
as incidental to such employment and that the union was maintaining persons in 
the wrongful occupation of such houses for the purpose of preventing the houses 
being used by persons who were willing to work. 

On these findings, a final decree was entered in each case and by this decree, the 
defendants were restrained and enjoined: 

"(1) From interfering with the employees of the plaintiffs or with men seeking 
employment at their mines by menaces, threats, violence, or injury to them, 
their persons, families, or property, or abusing them, or their families, or by 
doing them violence in any way or manner whatsoever, or by doing any other act 
or thing that will interfere with the right of such employees and those seeking 
employment to work upon such terms as to them seem proper, unmolested, and 
from in any manner injuring or destroying the properties of the plaintiffs, or 
either of them, or from counseling or advising that these plaintiffs should in any 
way or manner be injured in the conduct and management of their business and 
in the enjoyment of their property and property rights. 

"(2) From trespassing upon the properties of the plaintiffs, or either of them 
or by themselves, or in cooperation with others, from inciting, inducing, or per- 
suading the employees of the plaintiffs to break their contract of employment 
with the plaintiffs. 

"(3) From aiding or assisting any other person or persons to commit or 
attempt to commit any of the acts herein enjoined. 

" (4) From aiding or abetting any person or persons to occupy or hold without 
right, any house or houses or other property of the plaintiffs, or any of them, by 
sending money or other assistance to be used by such persons in furtherance of 
such unlawful occupancy or holding." 

The union filed 28 assignments of error and presented 5 principal contentions 
for consideration: (1) The evidence did not establish a conspiracy in restraint 
of trade; (2) there was misjoinder of parties plaintiff; (3) the injunctive decree is 
too broad, forbidding persuasion, as well as violence and intimidation; (4) that 
the courts should not have enjoined defendants from rendering assistance to 
persons to enable them to occupy houses belonging to complainants and (5) that 
those complainants who had had wage agreements with the union were not 
entitled to relief. 

From this resume of the facts in the case, it will be seen that the district court, 
if sustained, had effectually blocked the United Mine Workers of America from 
attempting to organize any mine workers in the entire State of West Virginia. 
Upon appeal, the case was considered by the Circuit Court of Appeals for the 
Fourth Circuit, consisting of Judges Waddill, Rose, and Parker. Judge Parker, 
now named for appointment to the Supreme Court of the United States, delivered 
the opinion of the court, which sustained in all essential respects, the decree of 
the district court and by the terms of which decision, the United Mine Workers 
of America were restrained from seeking to organize the mines throughout West 
Virginia. 

In rendering his decision, Judge Parker first took up the question of whether 
the evidence established a conspiracy in restraint of interstate trade and com- 
merce. 

After examining, the evidence and citing with approval certain portions of the 
decisions in the Duplex Printing Press and American Foundries cases, Judge 



36 CONFIRMATION OF JOHN J. PARKER 

Parker stated that he had no hesitation in holding that the defendants were not 
guilty of a conspiracy in restraint of trade, merely because of the extent and 
general purpose of their organization. He pointed out that in the coal industry, 
the rate of wages is one of the largest factors in the cost of production and affected 
not only competition in the immediate neighborhood but that with producers 
throughout the same trade territory. Accordingly, the union, he said, was not 
to be condemned because it sought to extend its membership throughout the 
industry. He also pointed out that section 6 of the Clayton Act declared the 
normal objects of labor unions to be legitimate and forbade their being held to be 
combinations or conspiracies in restraint of trade because they are organized or 
because of the normal effect of such organization on interstate commerce. He 
held: "It may be conceded that the purposes of the union, if realized, would 
affect wages, hours of labor, and living conditions and that the power of its 
organization would be used in furtherance of collective bargaining and that 
these things would incidentally affect the production and price of coal sold in 
interstate commerce. And it may be conceded further that by such an extension 
of membership, the union would acquire a great measure of control over the 
labor involved in coal production. But this does not mean that the organization 
is unlawful." 

"However," he went on to say, "when the union turned aside from its normal, 
and legitimate objects and purposes and engaged in actual combination or con- 
spiracy in restraint of trade, it was accountable therefore in the same manner as 
any other organization." And it was his opinion that the evidence in this case 
justified the conclusion that the United Mine Workers had engaged in an actual 
combination and conspiracy in restraint of trade in a manner quite foreign to 
the normal and legitimate objects of the union. He sustained the findings of the 
district judge that a combination or conspiracy existed among the defendants 
without regard to participation by the central operators, to restrain and interfere 
with the interstate business of complainants. The defendants, as officers of the 
union, had combined and conspired to interfere with the production and shipment 
of coal by the nonunion operators of West Virginia in order to force the unioniza- 
tion of the West Virginia mines and to make effective the srtikes declared pursuant 
to the policy of the union. There was no question in his mind but that the 
strikes called by the union in West Virginia in 1920 and 1922 and the alleged 
campaign of violence incident thereto, were merely the carrying out of the plan 
and policy upon which the mine workers had been engaged for a number of 
years. It was significant to him that efforts were made to organize nonunion 
fields at a time when there was no general strike. He stressed the fact that 
the national strike of 1922 was made applicable to the nonunion West Virginia 
fields and that the efforts to organize were continued after the settlement by 
virtue of the Cleveland wage agreement. All of these facts satisfied the district 
judge that a conspiracy to restrain interstate commerce was in effect and Judge 
Parker in his opinion found that these findings were sustained by the evidence. 

In determining the question as to whether or not coal mining constituted 
interstate commerce, he dismissed as not being in point, decisions of the Supreme 
Court in the first Coronado Case (259 U. S. 344), and that in the United Leather 
Workers v. Herkert (265 U. S. 457). In the Leather Workers case, it was held 
that the fact that trunks when manufactured were to be shipped or sold in 
interstate commerce would not make their production a part thereof. The first 
Coronado case held that a conspiracy directed against production of so small an 
amount of coal (5,000 tons a week) could not be said to be a conspiracy to restrain 
interstate commerce, even though the coal was intended, if produced, for shipment 
in such commerce. The second Coronado case (268 U. S. 295) was referred to 
and the ruling there was held applicable by Judge Parker to this case. 

"The mere reduction in the supply of an article to be shipped in interstate 
commerce by the illegal or tortious prevention of its manufacture or production 
is ordinarily an indirect and remote obstruction to that commerce. But when 
the intent of those unlawfully preventing the manufacture or production is shown 
to be to restrain or control the supply entering and moving in interstate com- 
merce or the price of it in interstate markets, their action is a direct violation of 
the antitrust act." 

Judge Parker felt that the case considered by him fell within the rule of the 
second Coronado decision. It was shown by Judge Parker that the total pro- 
duction of the mines of the complainants was in excess of 40,000,000 tons per 
year, more than 90 per cent of which entered interstate commerce. Interference 
with the production of these mines as contemplated by the defendants, would, he 



CONFIRMATION - OF JOHN J. PARKER 37 

held, necessarily interfere with interstate commerce in coal to a substantial 
degree. He further pointed out that the purpose of the defendants in interfering 
with the production was to stop the shipments in interstate commerce. It was 
only as the coal entered into interstate commerce that it became a factor in the 
price and affected the defendants in their wage negotiations with the union 
operators. A conspiracy, he held, was in violation of the statute where there 
existed an intent to restrain interstate commerce and a scheme appropriate 
for that purpose, even though it does not act directly upon the instrumentalities 
of commerce and, he went on to say, where the necessary result of the things done 
pursuant to or contemplated by the conspiracy is to restrain trade between 
the States, the intent is presumed. The defendants must be held to have intended 
the necessary and direct consequences of their acts and can not be heard to say the 
contrary. 

The second paragraph of decree restrained defendants "from inciting, inducing, 
or persuading the employees of the plaintiff to break their contract of employ- 
ment with the plaintiffs." 

It was contended that the effect of this decree operating indefinitely in futuro, 
was to restrain the defendants from attempting to extend their membership 
among the complainants' employees who are under contract not to join the 
union while remaining in complainants' services and to forbid the publishing 
and circulating of lawful arguments and the making of lawful and proper speeches 
advocating such union membership. The miners contended that the effect of 
the decree is that, because complainants' employees have agreed to work on 
the nonunion basis, they were forbidden, for an indefinite time in the future, 
to lay before them, any lawful and proper argument in favor of union membership. 

Judge Parker pointed out that while there be no boubt of the right of the 
defendants to use all lawful propaganda to increase their membership, this right 
must be exercised with due regard to the rights of complainants. "To make a 
speech or to circulate an argument under ordinary circumstances dealing on 
the advantages of union membership is one thing. To approach a company's 
employees, working under contract not to join the union while remaining in 
the company's service, and induce them, in violation of their contracts, to join 
the union and go on a strike for the purpose of forcing the company to recognize 
the union or of impairing its power of production, is another and very difficult 
thing." He held that what was said in the Hitchman case with respect to this 
matter was conclusive of the point involved here. 

"But the facts render it plain that what the defendants were endeavoring 
to do at the Hitchman mine and neighboring mines can not be treated as a bona 
fide effort to enlarge the membership of the union. There is no evidence to 
show, nor can it be inferred, that defendants intended or desired to have the 
men at these mines join the union, unless they, could organize the mines. Without 
this, the new members would be added to the number of men competing for 
jobs in the organized districts, while nonunion men would take their places in 
the Panhandle mines. Except as a means to the end of compelling the owners 
of these mines to change their method of operation, the defendants were not 
seeking to enlarge the union membership. * * * Another fundamental 
error in defendant's position consists in the assumption that all measures that 
may be resorted to are lawful if they are ' peaceable ' — that is, if they stop short 
of physical violence, or coercion through fear of it. In our opinion, any violation 
of plaintiff's legal rights contrived by defendants for the purpose of inflicting 
damage, or having that as its necessary effect, is as plainly inhibited by the law 
as if it involved a breach of the peace. A combination to procure concerted 
breaches of contract by plaintiff's employees constitutes such a violation." 

The inhibition of section 20 of the Clayton Act against enjoining peaceful 
persuasion was held not to apply as this was not a case growing out of a dispute 
concerning terms or conditions of employment, between an employer or employee, 
between employers and employees, or between employees, or persons employed, 
and persons seeking employment. This was a case, he held, growing out of a 
dispute between employers and persons who were neither ex-employees nor seek- 
ing employment and thus section 20 of the Clayton Act had no application. 

Paragraph 4 of the decree was criticized because it violated section 20 of the 
Clayton Act, but since Judge Parker held that section 20 did not apply, he saw 
no other reason why paragraph 4 was not proper. Under the law of West 
Virginia, when employees of complainants quit work and refused to surrender 
the houses of compl xinants occupied by them, they became trespassers. The 
effect of the fourth paragraph was held merely to be from aiding and abetting 
in trespasses committed on complainant's property in furtherance of the design 



38 CONFIRMATION OF JOHN J. PARKER 

of the conspiracy and Judge Parker further stated that no more effective way 
of shutting down the mine could be devised than to get the houses of the mine 
villages in possession of persons who refused to work in the mines and withhold 
possession of the houses from persons who are willing to work. 

The "check-off" was held not to be of itself illegal. The basis of the con- 
tention that those complainants who had formerly held agreements were not 
entitled to relief was that they had operated on a union basis for a number of 
years and paid the "check-off" to the union. However, Judge Parker held the 
"check-off" not to be illegal and that such complainants by agreeing to the 
"check-off" did not become parties to the conspiracy of the defendants. The 
decree entered in the several cases by the district court was held to be sustained 
by the evidence and was accordingly affirmed. 

BITTNER V. WEST VIRGINIA-PITTSBURGH COAL CO. (15 FED. (2D) 652). 

On May 11, 1925, a bill of complaint was filed by the West Virginia-Pittsburgh 
Coal Co. against the officers of the United Mine Workers as such and individually. 
Service was had upon Bittner and others. The bill set forth that the company's 
mines were run on a nonunion basis and that each miner employed by the com 7 
pany entered into a contract whereby it was agreed that the mines should be run 
nonunion and that such employees should not join or become affiliated in any 
way with any union of coal miners while in such employment. 

The bill alleged that from 1917 until 1922, the mines were operated on a union 
basis; that from January, 1922, they were operated on a nonunion basis and a 
vigorous effort was made by the miners to organize the mines. Contempt pro- 
ceedings were instituted under an injunction theretofore awarded against the 
United Mine Workers of America as a result of which the interruption in the 
use of the complainant's property was discontinued until about March 1, 1925. 

The complaint further alleged that around March 1, 1925, the defendants 
combined, conspired, and confederated together for the purpose of organizing the 
nonunion mines in northern West Virginia and had induced, enticed, and per- 
suaded a number of its employees to break their contracts of service and cease 
working for the complainant and agree to joint the United Mine Workers of 
America. It was alleged that the defendants knew that the mines had been 
operated as nonunion from 1922 and that the employees were working under 
contracts of service. 

The case came on to be heard on the complainant's prayer for a preliminary 
injunction and the defendant's motion to dismiss and thereafter on May 19, 
1925, the court awarded the preliminary injunction containing seven paragraphs 
as follows: 

" (1) From interfering or attempting to interfere with plaintiff's employees for 
the purpose of unionizing plaintiff's mines without its consent, by representing 
or causing to be represented to any of plaintiff's employees, or to any person who 
might become an employee of plaintiff, that such person will suffer or is likely to 
suffer some loss or trouble in continuing in or entering the employment of the 
plaintiff, by reason of plaintiff not recognizing the union, or because plaintiff 
runs a nonunion mine. 

" (2) From interfering or attempting to interfere with plaintiff's employees for 
the purpose of unionizing the mines without the plaintiff's consent, and in aid of 
such purpose knowingly and willfully bringing about the breaking by plaintiff's 
employees of contracts of service known at the time to exist with plaintiff's present 
and future employees. 

" (3) From knowingly and willfully enticing plaintiff's employees, present or 
future, to leave plaintiff's service on the ground that the plaintiff does not recog- 
nize the United Mine Workers of America or runs a nonunion mine. 

" (4) From interfering or attempting to interfere with plaintiff's employees, so 
as to knowingly and willfully bring about the breaking by plaintiff's employees, 
present and future, of their contracts of service known to the defendants to exist, 
and especially from knowingly and willfully enticing such employees, present or 
future, to leave plaintiff's service without plaintiff's consent. 

" (5) From trespassing on or entering upon the grounds and premises of plaintiff 
or its mines for the purpose of interfering therewith or hindering or obstructing 
its business, or with the purpose of compelling or inducing, by threats, intimida- 
tion, violent or abusive language, or persuasion, any of plaintiff's employees to 
refuse or fail to perform their duties as such. 

" (6) From compelling or inducing, or attempting to compel or induce, by 
threats, intimidation, or abusive or violent language, any of plaintiff's employees 



CONFIRMATION OF JOHN J. PARKER 39 

to leave its service, or fail or refuse to perform their duties as such employees, or 
compelling or attempting to compel by like means any person desiring to seek 
employment in plaintiff's mines and works from so accepting employment therein. 

" (7) From picketing the streets, roads, or other avenues of approach to plain- 
tiff's mines, for the purpose of enticing, entreating, persuading, or by any means 
inducing plaintiff's employees to break their contracts of service known to them 
at the time to exist; from approaching plaintiff's employees, present or future, at 
their places of residence, or at any other place for the purpose of enticing, entreat- 
ing, persuading, or by any means inducing said employees, to break their contracts 
of service known to them at the time to exist; from advertising meetings or by 
any means inducing plaintiff's employees to attend meetings at which attempts 
shall be made, by entreaty, enticement, or persuasion, to induce plaintiff's 
employees to break their contracts of service then known to them to exist; and 
from doing the like for the purpose of unionizing plaintiff's mines." 

On the same day, the defendants filed a written motion to dissolve the injunc- 
tion, which was heard on June 1 and on June 2, the district court filed its opinion, 
denying the motion to disslove and entered its decree, modifying the preliminary 
injunction by omitting the seventh paragraph. 

, Thereupon, the defendants appealed to the Circuit Court of Appeals for the 
Fourth Circuit, composed of Judges Waddill, Rose, and Parker. Judge Waddill 
delivered the unanimous opinion of the court. 

Four grounds were assigned by the defendants for reversing the decree of the 
district court. First, the complaint was not entitled to the relief prayed for under 
the doctrine of res adjudicata; second, that the court was without jurisdiction to 
afford the relief sought; third, that the decree asked for was villotive of the 
law, and, fourth, that the granting of the same would create a situation whereby 
the United Mine Workers of America would be entirely denied the right of 
having their side of the controversy heard. 

To sustain the doctrine of res adjudicata, the defendant showed that on 
December 2, 1913, the complainant procured an injunction against Bittner and 
others seeking relief of the character herein sought, which injunction was modi- 
fied on July 3, 1914, and on July 10, 1923, the injunction in its modified form was 
made permanent and a contempt proceeding had been instituted by the com- 
plainant seeking to secure the benefits of the injunction proceedings. 

The contempt proceedings were dismissed and the original injunction as modi- 
fied was attempted to be enforced. The temporary injunction of May 19, 1925, 
was modified by the omission of the seventh paragraph which resulted, in effect, 
in the reinstatement of the original injunction of December 2, 1913. 

The circuit court of appeals held that the facts as to what occurred in refer- 
ence to the original injunction had no material bearing in this case and that the 
condition prevailing and what occurred after the effort to operate the complain- 
ant's mines upon the original plan of nonunion mines should control. 

In the present case, the injunction decree in the old suit was entered in 1913 
and had reference to conditions existing then and the evidence was to prove the 
then existing conditions. The decree in that case referred to and determined 
the rights of the parties as of that time and held that the acts done at that time 
were in violation of the then rights of the parties. Bittner is the only party to 
the present suit who was a party to the 1913 suit and the defendants in this suit 
who were officers of the United Mine Workers are not bound by the decree in 
this suit. 

The bill in this case charges that around March 1, 1925, the defendants con- 
spired and confederated together for the purpose of unionizing all the nonunion 
mines of northern West Virginia and in furtherance of that conspiracy, during 
the month of April, 1925, entreated, enticed, and persuaded a great number of 
complainant's employees to break their contracts of service, well knowing that 
the mines were being operated on a nonunion basis and under contract with its 
employees to that end. 

The defendants were acquitted in the contempt proceedings instituted against 
them for alleged violations of the injunction order of 1913. This in no way 
affected complainant's right to the injunction prayed for, as the alleged con- 
tempt related to the old case and not to this. 

Answering the question of jurisdiction, it is held that the court was clothed 
with full power, authority and jurisdiction, as well as of the subject matter as of 
the parties to the litigation. The general purposes of the suit was to preserve 
and protect to complainant its lawful right to use and enjoy its property. The 
grievances are that the miners had set about and combined and confederated 
among themselves and with others to forcibly unionize complainant's mines 



40 CONFIRMATION" OF JOHN J. PARKER 

which would tend to destroy the value of the same, and make impossible the 
profitable production of coal. The company also complained that its mines 
were operated under written contracts with its employees on a nonunion basis 
and that this method of operating its mines, and the rights and benefits accruing 
to complainant under such contracts of employment was a most valuable property 
right which enabled it to successfully conduct its business, and particularly to 
maintain the number of employees necessary to carry on its business, and with- 
out which it could not have done so, and to avoid strikes and such incidental 
interruptions as would result in the practical destruction of its business and 
property and its right to use and enjoy the same. Notwithstanding the fact 
that the miners had knowledge of such contracts, they deliberately set about to 
induce and secretly persuade the company's employees and workmen to break 
their contracts by becoming members of the United Mine Workers and keeping 
that fact secret from the knowledge of the complainants, until with such numbers 
they could undermine and break up the complainant's business, all of which 
actions and doings were against good conscience and fair dealings. 

The right to maintain the suit was held to be clear. The miners, citizens of 
the States of Pennsylvania and Ohio, were served with process in West Virginia, 
which gave and conferred upon the complainant the right to maintain this, 
litigation. 

The case was held to be in its essential features a counterpart of the Hitchman 
case. Here as there, the right of injunction was involved and considered, growing 
out of efforts to unionize mines by peaceable and persuasive methods, fraud- 
ulently and deceptively practiced, in utter disregard of its rights and interests 
under the contractual relations with its employees, of which the defendants were 
fully advised. # 

Section 20 of the Clayton Act was held to have little or no application to this 
case, in the light of the interpretation placed thereon in American Foundries v. 
Tri-City Council (257 U. S. 184), where it was said: 

"It has been determined by this court that the irreparable injury to property 
or to a property right, in the first paragraph of section 20, includes injury to the 
business of an employer, and that the second paragraph applies only in cases 
growing out of a dispute concerning terms or conditions of employment, between 
an employer and employee, or between employers and employees, or between 
employees, or, between persons employed and persons seeking employment, and 
not to such dispute between an employer and persons who are neither ex-employ- 
ees nor seeking employment." 

Where fraud and deception are openly charged in the methods adopted and 
practices pursued to undermine and destroy the complainant's right, equity will 
not fail to afford the fullest relief. 

The circuit court of appeals stated that it appeared that the court below neither 
violated any rule of equity, nor improperly exercised the discretion reposed in it, 
and that the evidence entitled the complainant to injunctive relief, and that the 
action taken, save as modified hereafter, was free from error. 

The scope'of the injunction was criticized by the defendants who contended 
that its effect was to forbid the publishing and circulating of lawful arguments 
and the making of lawful speeches advocating membership in the union in the 
neighborhood of the plaintiff's mines. The circuit court of appeals did not think 
that this wag the proper construction of the order, which was an exact cop} 1, of 
that which was approved by the United States Supreme Court in the Hitchman 
case. But, in order that there might be no misunderstanding, the circuit court 
ordered that the injunction as issued be modified by adding the following pro- 
vision. 

"Provided, That nothing herein confined shall be construed to forbid the 
advocacy of union membership, in public speeches or by the publication or circu- 
lation of arguments, when such speeches or arguments are free from threats and 
other devices to intimidate, and from attempts to persuade the complainant's 
employees or any of them to violate their contracts with it." 

As modified, the decree of the district court was upheld. 

Mr. Green. Here is a memorandum that I wish to submit concern- 
ing the opinion of Circuit Judge John J. Parker in the case of the 
United Mine Workers of America v. the Red Jacket Coal & Coke Co. 
This is filed with you for the purpose of presenting to you our point of 
view regarding the difference in the rule laid down in the Hitchman 
case and the decision of Judge Parker. 



CONFIRMATION OF JOHN J. PARKER 41 

The personal, mental, and judicial attitude of Federal Circuit Judge 
John J. Parker concerning the rights of the laboring man in contro- 
versies with employers is clearly apparent from a reading of his opin- 
ion in the case of United Mine Workers v. Red Jacket Coal & Coke Co. 
(18 Fed. Rep. (2d) 839) (1927); Circuit Court of Appeals, Fourth Cir- 
cuit; especially when this case is compared or contrasted with the 
earlier cases of Bittner v. West Virginia-Pittsburgh Coal Co., decided 
by the same court and reported (15 Fed. Rep. (2d), 652) (1926); and 
the case of Hitchman Coal & Coke Co. v. Mitchell et al., decided by 
the Supreme Court of the United States in 1917, and reported in 245 
United States, 229. 

As a preliminary it is to be observed that the Red Jacket Coal case 
was heard and argued before the whole Circuit Court of Appeals for 
the Fourth Circuit, consisting then of Circuit Judges Waddill, Rose, 
and Parker. However, between the hearing of the case and the an- 
nouncement of the decision and opinion, Judge Rose died. At the 
end of the case it is stated that the late Judge Rose concurred in the 
decision that the decree of the district court should be confirmed but 
had expressed a desire to examine the record with a view of satisfying 
himself whether jurisdiction existed as to certain defendants. "He 
died before the opinion could be submitted to him." The opinion 
in this case, therefore, is not the opinion of three of the circuit judges 
but the opinion written by Judge Parker and concurred in by Judge 
Waddill. It is to be noted, in this connection, that Judge Waddill 
delivered the opinion of the same court in the Bittner case, supra, 
which had been decided by all three of the circuit judges, namely, 
Judges Waddill, Rose, and Parker. 

The so-called Red Jacket Coal case was a consolidation of 12 cases. 
Appeals were taken from decrees of the District Court for the Southern 
District of West Virginia, wherein the United Mine Workers, and 
certain of its officers, had been enjoined as»hereinafter set forth. 

Among the statements of fact prefacing the opinion, it is stated 
that : 

Complainants operated their mines nonunion, that is, their employees are 
notified that the company will not employ union men and accept employment with 
that understanding, and, in the case of most of them, the employees have entered 
into contracts that they will not join the union while remaining in the service of 
the employer. 

The contracts considered in the other two cases; namely, the Bittner 
case and the Hitchman case, were similar. 

In other words, by the terms of these alleged contracts laborers 
employed in the mines entered employment under an alternative 
contract, that is to say, they agreed that so long as they remained in 
the employ of the operators they would not join the union, or, con- 
versely stated, if they joined the union they would not remain in the 
employ of the operators. 

In the Red Jacket Coal case the bill sought to enjoin the union 
and its officers, among other things, from interfering with the com- 
pany's employees "by procuring them to breach their contracts wth 
plaintiff in the manner enjoined in Hitchman Coal Co. v. Mitchell. 



42 CONFIRMATION" OF JOHN" J. PARKER 

The district judge found, among other things, that defendants had 
conspired to restrain interstate trade and commerce in coal and were 
attempting — 

(a) unlawfully, maliciously, and unreasonably to induce, incite, and cause 
employees of the plaintiffs in said suits to violate their said contracts of em- 
ployment with said plaintiffs. 

(b) to compel said employees of said plaintiffs, by use of force, intimidation, 
threats, violence, vile epithets, abusive language, and false and fraudulent 
statements, to cease working for said plaintiffs and to become members of said 
union. 

Upon the pleadings and findings of fact by the district judge 
injunctions were issued enjoining defendants, among other things, 

(2) From * * * inciting, inducing, or persuading employees of the 
plaintiff to break their contract of employment with the plaintiffs. 

It is to be borne in mind that the alleged contracts do not prohibit 
employees from leaving the employ of the plaintiffs, nor from join- 
ing the union, but only from joining the union and continuing in 
the employ of the plaintiffs. 

Nowhere in the case does it appear (as it does appear in the 
Bittner and Hitchman cases, supra) that the employees in the Red 
Jacket Coal Co. secretly became members of the union and con- 
tinued in the employ of the plaintiffs. 

Senator Hebert. You are still quoting from the opinion now? 

Mr. Green. No; I am reading our interpretation. 

Senator Overman. You are reading the fact as to conspiracy, as 
to force. Is that from McClintic's finding of fact? 

Mr. Green. No, no. I am not quoting from McClintic's decision 
at all. 

Senator Borah. He is reading his own argument. 

Mr. Green. That is my own argument. 

In the Hitchman case* it was made plain that the workers were 
joining a union, and that they were doing it secretly, and while belong- 
ing to the union secretly they remained in the employ of the company, 
and that was involved in the Hitchman decision. Another thing 
was that the organizer who tried to organize these workers in the 
Hitchman case, did so through deception, and that is not charged in 
the Red Jacket case. 

At the hearing the appellants, United Mine Workers and its officers, 
argued that the second paragraph of the injunction restrained the 
defendants from persuading employees of the plaintiffs to break their 
contract of employment with plaintiffs and urged that the decree be 
modified in such manner as not to enjoin the appellants from advocat- 
ing union membership by means of public speeches, or the publica- 
tion or circulation of arguments free from threats, and so forth. In 
denying such modification Judge Parker used the following language: 

It is said, however, that the effect of the decree, which, of course, operates 
indefinitely in futuro, is to restrain defendants from attempting to extend their 
membership among the employees of complainants who are under contract not 
to join the union while remaining in complainants' service, and to forbid the pub- 
lishing and circulating of lawful arguments and the making of lawful and proper 
speeches advocating such union membership. They say that the effect of the 
decree, therefore, is that, because complainants' employees have agreed to work 
on the nonunion basis, defendants are forbidden, for an indefinite time in the 
future, to lay before them any lawful and proper argument in favor of union 
membership. 

If we so understood the decree, we would not hesitate to modify it. As we 
said in the Bittner case, there can be no doubt of the right of defendants to use 



CONFIRMATION OF JOHN J. PARKER 43 

all lawful propaganda to increase their membership. On the other hand, how- 
ever, this right must be exercised with due regard to the rights of complainants. 
To make a speech or to circulate an argument under ordinary circumstances 
dwelling upon the advantages of union membership is one thing. To approach 
a company's employees, working under a contract not to join the union while 
remaining in the company's service, and induce them, in violation of their con- 
tracts, to join the union and go on a strike for the purpose of forcing the company 
to recognize the union or of impairing its power of production, is another and very 
different thing. What the decree forbids is this "inciting, inducing, or persuading 
the employees of plaintiff to break their contracts of employment"; and what was 
said in the Hitchman case with respect to this matter is conclusive of the point 
involved here. 

Senator Borah. That contract is what j^ou call the " yellow-dog " 
contract? 

Mr. Green. The "yellow-dog" contract. 

In other words, this opinion and decision can mean only one thing, 
and that is, that so long as employees are working for an employer 
under the alternative sort of alleged contract, hereinbefore described, 
neither the union nor any of its officers has the right in any manner 
whatsoever to attempt to persuade such employees to join the union. 

Senator Hebert. That is your conclusion, but that is not exactly 
what the judge said in his decision, however. 

Mr. Green. Well, that is the effect of it. 

It is to be observed that Judge Parker attempts to rely upon the 
Hitchman case, supra, decided by the Supreme Court of the United 
States, and upon the Bittner case, supra, previously decided by his 
own court. 

An examination of the Hitchman case shows that it arose prior 
to the enactment of the Clayton Act; that it held that the United 
Mine Workers of America was an unlawful combination in restraint 
of trade, and so forth. 

Thirteen years ago it was decided that that labor organization was 
a conspiracy, an unlawful combination in restraint of trade. Since 
that time the Clayton Act has been sustained, which wipes out that 
doctrine of conspiracy as held in the Hitchman case. An examina- 
tion of the Hitchman case shows that it arose prior to the enactment 
of the Clayton Act, that it held that the United Mine Workers of 
America were an unlawful combination in restraint of trade, and so 
forth, and sustained an injunction restraining the defendants from 
inducing plaintiff's employees to break their contract of employment 
with plaintiff. 

Restraining what they held to be an unlawful combination. 

It is to be observed, however, that in the Hitchman case the 
facts differ. There, according to the findings of facts, the union or- 
ganizer (p. 246) did not confine himself to mere persuasion but 
resorted to deception and abuse. The deception consisted of induc- 
ing the employees of the Hitchman Coal Co. to join the union secretly 
and at the same time to remain in the employ of the Hitchman Coal 
Co. until a sufficient number of employees should become members 
of the union, without the knowledge of the employer, to successfully 
bring about a strike. 

No such charge was made in the Red Jacket case. There was no 
charge that the United Mine Workers' officers were attempting to 
use deception or fraud or to persuade the men to secretly join the 
union and to remain in the employ of the coal company after they 
had joined the union. There is the difference between the two cases. 



44 CONFIRMATION OF JOHN" J. PARKER 

In the Bittner case, supra, opinion by Circuit Judge Waddill, the 
same situation existed according to the findings of fact. In that case 
the lower court had enjoined the defendants, among other things: 

(2) From knowingly and wilfully bringing about the breaking by the plain- 
tiff's employees of contracts of service known at the time to exist with plaintiffs 
present or future employees. 

(4) From knowingly and wilfully enticing such employees, present or future, 
to leave plaintiff's service without plaintiff's consent. 

(7) From by any means inducing plaintiff's employees to break their con- 
tracts of service known to them at the time to exist; from approaching plaintiff's 
employees, present or future, at their places of residence, or at any other place, 
for the purpose of enticing, intreating, persuading, or by any other means inducing 
said employees to break their contracts of service kn6wn to them at the time to 
exist. 

And so forth. Just think of it. 

Senator Overman. That is the Bittner case you are reading from? 

Mr. Green. Yes. 

In his opinion, in the Bittner case, Judge Waddill stated (p. 657) 
that the case was in its essential features practically a counterpart of 
the Hitchman case; notwithstanding which the injunction decree of 
the district court, which was affirmed otherwise, was modified by the 
following proviso (p. 659): 

Provided: That nothing herein contained shall be construed to forbid the 
advocacy of union membership in public speeches or by the publication of 
circulars or arguments, when such speeches or arguments are free from threats 
and other devices to intimidate, and from attempts to persuade complainant's 
employees, or any of them, to violate their contracts with it. 

That is quoted from the Bittner case. 

From the foregoing it is perfectly apparent that Judge Parker in 
his opinion and decision in the Red Jacket Coal case has gone far 
beyond the doctrine laid down either by the Supreme Court of the 
United States or by the Circuit Court of Appeals of the Fourth 
Circuit; and that he has, in effect, practically stated the law to be 
that it is unlawful, by any means whatsoever (even though there 
be no element of violence, threat, fraud or deceit), to endeavor to 
induce or persuade an employee to join a labor union if such employee 
is working under an alternative agreement hereinbefore described 
and generally known as a "yellow-dog" contract. 

Senator Borah. Have you a copy of any " yellow-dog" contract? 

Mr. Green. Yes, we have some at our office, and I will be glad to 
supply it for the benefit of the committee. 

Senator Overman. I wish you would send one to the committee, 
and we will put it in the record. 

Mr. Green. I will be glad to. 

(Copies of several "yellow-dog" contracts are as follows:) 

THE EMPLOYMENT CONTRACT OF LILLYBROOK COAL CO., ONE OP THE PLAINTIFFg 
IN THE RED JACKET INJUNCTION CASE 

It is mutually agreed between Lilly brook Coal Co., and , here- 
inafter for convenience referred to as the first and second party respectively, as 
follows : 

1. The first party hereby employs and the second party hereby agrees to work 
for the first party in or around its coal mines upon the terms and conditions 
herein stated, which employment may be terminated by either party hereto at will. 

2. The mines of the first party are operated by nonunion labor and the first 
party agrees that it will continue to so operate said mines so long as the second 
party remains in its employ. 



CONFIRMATION OP JOHN J. PARKER 45 

3. The second party accepts the above employment with the express under- 
standing and agreement that he is not a member of the United Mine Workers of 
America or other labor unions; that he will not agree to become a member of or 
join the United Mine Workers of America or other labor union while he is in the 
employ of the first party and if at any time while he is in the employ of the first 
party he desires to become a member of the United Mine Workers of America 
or other labor union he will immediately quit the employment of the first party. 
And the second party further agrees that while he is in the employ of the first 
party he will not make any effort to induce, persuade or otherwise procure the 
other employees, present or future of the first party to agree to become a member 
or members of the United Mine Workers of America or any other labor union or 
to join the same. 

Witness the following signatures. 



EMPLOYMENT CONTRACT OF SUMMIT COAL CO., ONE OF THE PLAINTIFFS IN THE 
RED JACKET INJUNCTION CASE 

I am not now a member of the United Mine Workers of America, the I. W. W., 
or any other organization of mine workers and will not during this employment 
join or affiliate with any such mine labor organization because I believe the 
preservation of the right of individual contract free from interference or regulation 
by others and payment in proportion to services rendered, to be to my interest, 
to the best interest of the public and of all industry; and I enter this employment 
with the understanding that the policy of the company is to operate a nonunion 
mine and that it will not knowingly employ anyone belonging to such union or 
organization and would not give me employment under any other condtions. 

I hereby acknowledge receipt of a copy of the mining laws of West Virginia 
and the rules and regulations of this company. I have also been instructed in 
the hazards of this occupation. 

(Signed) 

I hereby apply to Boone County Coal Corporation for employment at its 
mines situate on the Spruce Fork of Coal River in Logan and Boone Counties, 
W. Va., upon the following terms: 

(1) I understand that the company is operating "nonunion" and that it is to 
continue to operate nonunion while I am in its employ. 

(2) I am not now a member of the United Mine Workers of America, the 
I. W. W., or any other organization of mine workers, and will not, while I am in 
the employ of this company, join or affiliate with any such mine labor organiza- 
tions. 

(3) If at any time while in the employ of the company I want to become a 
member of or affiliate with any such organization, I agree to withdraw from its 
employment, after giving it three days' notice thereof, and to surrender to the 
company the possession of any premises or property of the company which I may 
be occupying or using. 

(4) I will not make any effort while in the employ of the company or upon its 
property, to unionize its employees or interfere in any way with their working 
for the company. 

(5) I agree to accept the scale of wages which the company is paying at this 
time for similar work, which is satisfactory to me. 

This memorandum, when accepted by the company, constitutes a contract of 
employment between me and said company, made this day of , 

192. _: 



Witness : 
Approved : 



Boone County Coal Corporation 
By 



Mr. Green. I am submitting herewith for the consideration of the 
committee a few samples of "yellow-dog" contracts which have 

107150—30 4 



46 CONFIRMATION" OF JOHN J. PARKER 

come into my possession. Particular attention is drawn to those 
which have been imposed on the workers in the hosiery industry, 
which justifies an assumption that a concerted effort is being made 
to impose this so-called contract throughout the industry. Because 
of the fact that many of such so-called contracts are verbal and much 
more oppressive, it is not possible to furnish the committee with 
copies of them. Then, too, many of such antiunion provisions are 
contained in employment application blanks which necessarily remain 
in the possession of the companies. For this reason it is not possible 
to furnish the committee with samples of these. Particular attention 
is directed to the contract drawn up by the Industrial Association of 
San Francisco, which in effect makes that body a strike-breaking 
agency. 

No. 

CONTRACT OF EMPLOYMENT 

This agreement, made and entered into this day of , 192 — , by and 

between the Industrial Association of San Francisco, the party of the first part, 

hereafter called the association, and the party of the second part, 

hereafter called the mechanic, 

Witnesseth: This contract becomes effective when the mechanic is prepared to 
begin a full day's work after his arrival in San Francisco. 

(1) The mechanic hereby represents, warrants, and guarantees that he is a 
skilled . 

(2) The association hereby guarantees continuous employment (except as 

hereinafter provided) to said mechanic as a skilled from and after the 

date mechanic arrives in San Francisco and is prepared to begin a full day's 

work to — ■ , 192 — (Sundays and legal holidays excepted), at a minimum 

wage of -, it being understood that nothing herein contained shall prohibit 

the mechanic from earning more than this amount. 

(3) The mechanic hereby agrees to furnish the usual tools used in his craft. 

(4) It is agreed by and between the parties hereto that each working day 
except Saturdays shall consist of 8 hours, and that each week shall consist of 
5}i days; it is also understood that this agreement contemplates a 44-hour week 
(except as hereinafter provided as to overtime). Overtime is to be paid at the 
rate of time and a half for the first four hours and thereafter double time shall 
be paid. Sundays and holidays shall be double time. 

(5) It is agreed that as part of this contract the association shall advance 

transportation to the mechanic from to San Francisco, the cost of which, 

to wit, $ , is to be deducted from the pay due to the mechanic and withheld 

by his employer at the rate of $5 per week, commencing the second week of em- 
ployment and continuing until the full amount of said transportation is paid. 
In the event that the mechanic fully and faithfully performs the services herein 
specified for the original period of this contract the association agrees to refund 
and pay to the mechanic said sums so deducted and withheld from said pay upon 
the expiration of said period. 

(6) It is further agreed by and between the parties hereto that the association 
may terminate this agreement at any time by furnishing said mechanic transpor- 
tation to . If this agreement is thus canceled by said association, the 

transportatoin thus furnished or offered to be furnished shall be in lieu of any 
further employment, and the mechanic thereupon agrees to release the associa- 
tion from all claims and demands of every kind and nature whatsoever, the 
payment of which to the mechanic will release and discharge the association from 
any further liability under this contract. 

(7) It is also understood and agreed that this contract may be terminated at 
the option of the association because of the incompetency, intoxication, or 
insubordination of the mechanic, or because of the refusal of the mechanic to 
work when and where ordered, to do a full day's work, or because of absenting 
himself without the permission of the association; it being understood that if 
this contract is thus terminated said mechanic shall have no further claim against 
said association for further employment or for the benefits of this contract or 
otherwise. 



CONFIRMATION OF JOHN" J. BAJEKEK 47 

(8) The mechanic hereby agrees to work under American-plan conditions in 
San Francisco or within a radius of 50 miles thereof until the date set forth in 
paragraph 2 hereof, whenever and wherever he may be directed by the associa- 
tion. 

(9) Said mechanic agrees to take orders from and be entirely under the juris- 
diction of the association, except such time as he may be assigned for employ- 
ment by the association to an employer or person engaged in the photo-engraving 
business in San Francisco or vicinity. 

(10) In the event the mechanic shall be idle during the term of this agree- 
ment because the association has not furnished him with workfor assigned him 
for work, then said mechanic agrees to report daily during such time as he is not 
furnished work by said association, at its office in the Alexander Building, 155 
Montgomery Street, San Francisco, or other designated place, at the following 
times, to wit, from 10 a. m. to 11a. m. and from 4 p. m. to 5 p. m. 

(11) The mechanic hereby certifies that he has no physical defect which will 
disqualify him for the duties pertaining to the work which this contract con- 
templates. 

(12) It is further agreed that no claim shall be made against the association 
by the mechanic for compensation or damages, including workmen's compensa- 
tion, for injury either to person or property occasioned while said mechanic is 
employed or is working for any of the employers or persons to whom he may be 
assigned by said association, the said employer or persons being considered the 
immediate employer of the mechanic for the purpose of any such claim. 

(13) It is expressly agreed that this contract may be extended (all other con- 
ditions remaining in force as pertains to working conditions, rates of pay, etc.), 
at the option of the association for a period of not to exceed six months from and 
after the expiration of this agreement. 

(14) This agreement is complete in itself and supersedes all prior negotaitions 
and contracts, whether oral or written, it being expressly agreed between the 
parties hereto that any such prior written or oral negotiations or contracts are 
hereby set aside and canceled and that this contract contains all of the agree- 
ments and the only covenants and agreements between said association and said 
mechanic. 

(15) No alterations or modifications of the terms or conditions of this agree- 
ment shall be valid unless signed by the president or by the managing director 
of said association; and no promises, whether oral or written, shall be binding 
on said association unless the same are reduced to writing and signed by the 
said president or said managing director of said association. 

(16) The mechanic accepts service with full understanding that he is to work 
under strike conditions. 

The undersigned mechanic hereby acknowledges and certifies that he has read 
and understands all of the terms of the within and foregoing contract. 

In witness whereof the parties hereto have set their hands the day and year 
first above written. 

Industrial Association of San Francisco, 

By . 

Witness: 



To the United States Gypsum Plaster Co. 

I hereby apply for work with the United States Gypsun Plaster Co. and agree 

to accept for my employment in such capacity a wage of cents per hour; 

if by piece-work rate will be , the work, wages, and hours being subject 

to revision on option of the company and it will be considered as acceptable 
by me if I remain in the employ of the company hereafter. 

I accept the company's right, at its option, to operate its plants and mines 
such number of hours each shift as the requirements of business demand. 

I reserve the right to leave the company 's employ at any time upon such 
reasonable notice to the superintendent of my department that will afford him 
time to fill my place. The company, may, at its option, dispense with my 
service for any cause which the company may deem sufficient. 

I agree during employment under this that I will work efficiently and diligently 
and will not participate in any strike nor unit with employees in concerted action 
to change hours, wages, or working conditions; I further declare that I am not 
a, member of the I. W. W. or any other communistic or like organization, nor will 
I join such while in the company's employ. 

I agree to abide faithfully by all the rules of the company as posted on its 
premises or outlined by the superintendent of my department. 



48 



CONFIRMATION OP JOHN J. PARKER 



The company agrees to pay the wages earned by me regularly semimonthly 
and to enable me to maintain as far as possible a regular income by uninterrupted 
operation. 

When this application as indorsed is accepted by the company it shall become 
a binding contract between myself and the company as long as I remain in the 
company's employ. 

Accepted day of , 1925. 

Signed 

Address . 



APPLICATION FOR EMPLOYMENT AS OPERATOR 

Age 



Ful name 

Permanent address (city and street) 



Previous employers 
[This information must cover a period of five years] 



Employer's name 


Address 


Position 


Occupied 


Time 
engaged 


Reason 

for 
leaving 











































































References other than above, if any 

Have you previously been employed as an operator in this city? 

If so, when and by whom 

What experience have you had on press and code work? 

Do you use and own a typewriter? 

State condition of health during the past five years 

Are you afflicted with writer's cramp or telegrapher's paralysis? 

Are you temperate? 

Are you a member of any telegrapher's union? 

If so, do you agree, in case you are given employment by the Postal Telegraph- 
Cable Co. to resign your union membership, and also to refrain from joining any 
Union during the continuance of such employment; and also render full and faith- 
ful service at all times, to obey rules and instructions, refraining from all agitation 
and interference with the company's business, and to work carefully and well 
with every operator? 

Do you wish to become a member of the Postal Telegraph Employees Associa- 
tion? 



(Date) . 



(Signature) 
(Address) _ 



Note. — The applicant will please fill out and return this blank to. 

Manager 



EMPIRE HAT WORKS, CHICAGO, ILL. 

The undersigned hereinafter referred to as employee, in accepting and/or 

continuing in employment with hereinafter referred to as employer in 

place of business at Chicago, Cook County, 111., and in considera- 
tion of said employee being emplo3 r ed by said employer and in consideration that 
this employer does and will continue to operate said place of business on the 
nonunion basis, does so upon the understanding and agreement with said 
employer as follows: 

(1) That said employer is operating and will continue to operate upon the 
nonunion basis and as nonunion. 

(2) That said employer will not recognize nor have any dealing with any 
labor union. 



CONFIRMATION" OF JOHN J. PARKER 49 

(3) That said employee is not a member of any labor union, that while em- 
ployed by said employer he will not become a member of any labor union, and 
will have no dealings, communications, or interviews with the officers, agents, 
or members of any labor union in relation to membership by said employee in 
such labor union, or in relation to said employee's said employment. 

(4) That it is the intention and desire of said employer and employee that 
the employment relation between them be kept entirely free from interference 
or intervention in any respect by any labor union, its officers or agents. 

Employee's name , 

Address . 

Employer's name , 

Bv . 

I am employed by and work for the Chipman Kintting Co., Easton, Pa., with 
the express understanding that I am not a member of the American Federation of 
Full Fashioned Hosiery Workers Union, or unions, et al., and will not become a 
member while an employee of the Chipman Knitting Co.; that the Chipman 
Knitting Co., is run nonunion and agrees with me that it will remain nonunion 
while I am in its employ. If at any time I am employed by the Chipman Knitting 
Co., I want to become connected with the American Federation of Full Fashioned 
Hosiery Workers Union, or unions, et al., or any affiliated organization, I agree 
to withdraw from the employ of the said company, and agree that while I am in 
the employ of said company I will not make any efforts amongst its employees 
to bring about the unionizing of that factory against the company's wish. I have 
either read the above or heard the same read. 



Approved by: 



ARTCRAFT YELLOW DOG 

I am employed by and work for the Artcraft Silk Hosiery Mills (Inc.), of 
Philadelphia, Pa., with, the express understanding that I am not a member of the 
American Federation of Full Fashioned Workers Union, Local No. 706, or any 
of its affiliated branches, that it is my understanding that the Artcraft Silk Hosiery 
Mills (Inc.), is a nonunion shop, and that it agrees with me that as long as I am 
in its employ, it will remain a nonunion shop. 

Should I desire at any time to become connected with any local branch or 
affiliated organization connected with the American Federation of Full Fashioned 
Hosiery Workers Union, it is distinctly understood that I am privileged to do so 
but I hereby agree that before becoming connected with any such group, I will 
tender my resignation to the Artcraft Silk Hosiery Mills (Inc.). 

It is further understood and agreed that so long as I am employed by the 
Artcraft Silk Hosiery Mills (Inc.), I will not make any effort amongst itself to 
bring about the organization of this plant or plants against the wishes of your 
company. 

I have either read the same or heard the above read. 



Witi 



Indianapolis, Ind., August 18, 1927. 

I am employed by, and work for, Real Silk Hosiery Mills, (Inc.), an Illinois 
corporation, at its mill in the city of Indianapolis, Ind., with the express under- 
standing that I am not a member of the American Federation of Full Fashioned 
Hosiery Workers, of the Indianapolis local branch, or any of its affiliated bodies, 
nor of any similar outside organization, and will not become so while an emplovee 
of Real Silk Hosiery Mills (Inc.). 

I further understand and agree that the mill of Real Silk Hosiery Mills (Inc.), 
at Indianapolis, is run nonunion, and it agrees with me that such mill will run 
nonunion while I am in its employ. 

I further agree that I will not enter into any agreement, or advise any other 
employee so to do, the purpose of which shall be to induce or procure the em- 
ployees of Real Silk Hosiery Mills (Inc.) or any of them, by concerted action, 
to quit the service of said corporation in a body or at a given time, or in any 
way to interfere with the business of said corporation or. hamper or obstruct it 
in the manufacture and sale of its products. 



50 CONFIRMATION OF JOHN J. PAEKEE 

Real Silk Hosiery Mills (Inc.), on its part agrees that it will provide means 
to train me and its other employees; that it will not lockout its employees in a 
body, nor refuse to employ competent men willing to abide by the terms of this 
agreement, nor discharge men wholly without cause, or otherwise violate any 
clause of this agreement. 

If at any time while I am employed by Real Silk Hosiery Mills (Inc.), I want 
to become connected with the American Federation of Full Fashioned Hosiery 
Workers, the local Indianapolis branch, or any of its affiliated organizations, 
I agree to withdraw from the employment of said company and I agree that while 
I am in the employ of that company I will not make any efforts among its em- 
ployees to bring about the unionization of its mill at Indianapolis against the 
company's wishes. 

I have either read the above, or heard the same read to me. 



Real Silk Hosiery Mills (Inc.). 
Witness: 



Copy of yellow-dog contract which A. R. MacDonald attempted to install in 
the Cambria Silk Hosiery Co.'s plant in Philadelphia. 

INDIVIDUAL CONTRACT FORM 

I am employed by and work for the of , with the express under- 
standing that I am not a member of the American Federation of Full Fashioned 
Hosiery Workers' Union, any affiliated organization, or any other union or 
organization existing or hereafter constituted or created for a purpose of having 
aims or purposes similar to the above named and will not become so while an 

employee of the ; that the is run nonunion and agrees with me that 

it will run nonunion while I am in its employ. If at any time I am employed by 

the , I want to become connected with the American Federation of Full 

Fashioned Hosiery Workers' Union or any organized labor body, I agree to 
withdraw from the employment of said company, and agree that while I am in 
the employ of that company I will not make any efforts amongst its employees 
to bring about the unionizing of that factory against the company's wishes. I 
have either read the above or heard the same read. 



Witness : 



Allied Manufacturers' League (Inc.), 

New York, N. Y. 
Gentlemen: The undersigned hereby subscribes to membership in the Allied 
Manufacturers' League (Inc.), and approves the league's aims and purposes as 
outlined below: 

AIMS AND PURPOSES 

To organize employers of labor and by collective action and expertly directed 
effort to combat communism and radicalism and its inroads into American 
industry. To eliminate by means and methods of proved legality and effective- 
ness, the growing cancer of communism as it is present in our industrial body, 
and by lawful and educational method, to actively discourage its being further 
fostered. 

To prevent radical or communistic interference, direct or otherwise, with the 
relations that exist between employers and employee. 

To eliminate the great economic losses that radicalism, unchecked and un- 
hindered, eventually forces upon employers who are unorganized and unfamiliar 
with the intricacies and effectiveness of the communistic method. 

Membership shall entitle us to full participation in the activities of the league 
as outlined below: 

1. Consultation and statistical department. — We shall have the privilege of con- 
sulting with the officers of the league as often as we deem necessary on all matter 
pertaining to labor law, labor strife or strike, communism, radical labor move- 
ments, etc., such consultations to include the league's assistance based on its 
experience in the above fields. We shall have access to the league's statistical 
files at all times. (This department maintains an adequate file of papers, books, 
documents, letters, lists, etc., pertaining to all phases of the communist or radical 
labor movement.) 



CONFIRMATION OF JOHN J. PARKER 51 

2. Professional department. — It is understood that in case of strife or strike- 
suspected, pending, or active, we shall have the right to consult this department 
for advice or assistance. Such advice and assistance will include, when neces- 
sary, the personal visit of an expert deputized by the league to cooperate with us 
in properly handling the situation. It is understood that there shall be no charge 
for the services of such an expert — but we do, however, agree to pay his actual 
expenses while he is absent from his home office during such consultation. We 
also understood that upon proper written request the league will assist us in 
securing new employees. We agree to pay actual cost of such assistance. 

We also understand that upon written request the league will assist us in 
securing instructors to teach any employees the technique of our business. 

3. Production department. — We understand that the league will assist us at 
any time in securing facilities that will aid in our production requirements, at 
prices subject to our acceptance — this to be affected through other members 
of the league. We agree that inasmuch as there is no additional charge for 
this service, the league shall not be held accountable for credits, juices, or any 
other losses sustained by us in so placing our production. We also agree that 
if the league appeal to us to assist another member whose production has been 
hindered through strike or strife, we will use our best efforts in so far as we can, 
without injury to ourselves, to assist the member. 

4. Contract department. — We understand that we have the right to request 
the league to install the individual contract system in our plant if we desire 
such an installation. It is thoroughly understood that the installation of the 
contract system is not obligatory to members of this league. 

5. Current news and advisory department. — It is understood that this department 
will assist us in the preparation of educational articles on communism for news- 
papers, house organ or leaflets without cost to us. Such material is to be pre- 
pared only upon our written request addressed to the league's home office. 
We also understand that the league will supply us, at actual cost, with printed 
matter on communism, properly prepared for distribution to employees, if we 
request same. This department will also advise us through letters, bulletins, 
etc., regarding current league activities and certain phases of the communistic 
or radical movement. 

6. Legislative department. — We pledge ourselves to assist the league's legisla- 
tive department as far as it is within our power and judgment necessary, in 
combating legislation that we believe detrimental to ourselves or our relations 
with our employees. We also pledge ourselves to assist the league's legislative 
department so far as our judgment dictates, in securing the enactment of such 
laws as will prevent communists or radicals from successfully carrying on their 
legislative program, and their local and national activities. 

7. Federal department. — We agree to cooperate with the league in its efforts in 
maintaining this department and its relations with the Federal Government. 

Advisory board. — Allied Manufacturers' League (Inc.) as chartered by the 
State of New York, provides for an advisory board comprised of not more than 
15 members, including not more than 5 from any one industry. The advisory 
board will meet quarterly or more often it if be considered necessary, and is em- 
powered to offer suggestions regarding the policy of the league in its relations 
with labor. A member of the league may at any time submit to the advisory 
board for such action as is deemed necessary, ideas, suggestions, etc., pertaining 
to the labor situation in his particular industry. 

9. We agree that in so far as we accept recommendations of the league, such 
recommendations shall be used only in a just and honorable manner as they 
apply to our employees. We further agree that all information prepared exclu- 
sively for and submitted to us by the league shall be regarded as for our particular 
use, such information to be handled judiciously and in entire confidence except 
as regards other members of the league. It is fully understood that our member- 
ship in this league does not financially obligate or connect us in any way with 
the league's financial responsibilities. 

10. We agree to pay $ upon notification from the league of the accept- 
ance of our application and to pay $ each month for a period of one year 

thereafter, in advance. 

11. This membership agreement shall continue from year to year unless we 
notify the league in writing at least 60 days before the expiration of this agree- 
ment of our desire to discontinue our membership. We also agree that the 
league may cancel this agreement upon 30 days' written notice if the advisory 
board shall decide that such cancellation be for the best interests of the league. 



52 CONFIRMATION OF JOHN J. PARKER 

12. In cases of dispute under the terms of this agreement, both parties bind 
themselves to submit the same to an arbitration committee of three members of 
the league and to abide by the conclusions of that committee. The league shall 
select one member of this committee, the party in dispute shall select one member, 
and the league and the party in dispute shall select the third member. 



Allied Manufacturers' League (Inc.) 
Make all checks payable to the Allied Manufacturers' League (Inc.). 

Senator Overman. In this case there was a certiorari to get an 
appeal from Parker's decision. The Supreme Court heard that and 
refused to grant the appeal? 

Mr. Green. Yes; the Supreme Court refused to grant the applica- 
tion for a writ. That is another reason why we should like to see the 
Supreme Court liberalized. 

Senator Hebert. Was that a divided opinion, the refusal of the 
Supreme Court? Was it unanimous, or a divided opinion? 

Mr. Green. I am not in a position to say whether that was a 
divided opinion or not. 

Now, I want to call your attention to this fact, in connection with 
Judge Parker, that Judge Parker was a candidate for the Republican 
nomination for governor in North Carolina in 1920. He was ap- 
pointed and served as the special assistant to Attorney General 
Harry M. Daugherty from 1923 to 1924. He served in that position 
during that time. He was national committeeman for the Republi- 
can Party in North Carolina in the year 1924. 

There are some other matters in connection with this case that I 
should like to call your attention to, but I think it is unnecessary. 
I have here some citations of instances where State courts particu- 
larly have refused to follow the ruling of the Supreme Court in the 
Hitchman case. If you think it would serve the purpose of the com- 
mittee to have it, I would be glad to go on. 

Senator Overman. We will be glad to have it, if you desire it in 
the record. 

Senator Borah. Have you the 245 New York there? 

Mr. Green. Yes; that is included. You mean in the bakery and 
restaurant case? 

Senator Borah. Yes. 

Mr. Green. That is 260 

Senator Borah. No; 245 New York. 

Mr. Green. Yes; 245 New York. 

There are a number of cases cited here. 

In the decision of the Diamond Block Coal Co. v. United Mine 
Workers, 222 S. W. 1079 Ky. (1920), the ruling in the Hitchman 
case was not followed. The company had sought and obtained an 
injunction restraining various acts of the union for the purpose of 
inducing or persuading any of its employees to break their con- 
tracts of employment. The court of appeals reversed the decision 
of the Circuit Court for Perry County and said : 

Labor organizations have a status in this country the same as other associations. 
Courts without exception have recognized the right of laboring men to associate 
themselves together to better their conditions and to increase their wages by 
lawful means. They can organize new lodges and solicit membership at any 
time or place so long as they do not trespass upon the rights of another. 

The general rule seems to be that organizers of labor unions may use any 
peaceable means, not partaking of fraud, to induce persons to become members, 
and equity will not enjoin such organizers or their associates, from attmpting 
by proper argument to persuade others to join the union so long as they do not 



CONFIRMATION OF JOHN J. PARKER 53 

resort to force or intimidation. If the union should induce employees of the 
plaintiff to become members of its organizaton, and the plaintiff, as it has done in 
the past, should discharge such employees because of their membership in the 
union, and the plaintiff should thereby lose the service of the employee, the 
proximate cause would not be the joining of the union by the employee, but the 
discharge of the employee by the plaintiff, and the plaintiff could have no legal 
redress of the defendant, even though all its employees should so join the union 
and should in consequence suffer discharge by the plaintiff, and its business 
should be closed. ' 

In La France Electrical Construction & Supply Co. r. Electrical 
Workers, 140 N. E. 899 Ohio (1923), individual contracts were for 
employment at will and under which the employee agreed and prom- 
ised that he would take no action at any time designed or tending 
in any way to unionize the employees or to make its shop a closed 
union shop or any of its jobs closed union jobs. The trial court, 
while enjoining intimidation, threats, and violence, did not restrain 
the strikers from peaceful picketing, nor from peacefully persuading 
employees of the La France Co. to leave their work, nor from peace- 
fully persuading applicants for work not to accept employment with 
the company. The company appealed from the decision of the lower 
court, but the court of appeals, as well as the State supreme court, 
affirmed its decision. The State supreme court said: 

Equality of justice demands that in any controversy the rights of all parties be 
scrupulously maintained. The right of workmen to be employed, irrespective of 
union membership, must be maintained; the right of the employer to conduct his 
business without illegal interference must be upheld; and legal means employed 
by strikers must not be curtailed. Among the latter are the right of peaceful 
picketing, the peaceful persuasion of employees to terminate contracts at will, 
and the peaceful persuasion of expectant employees not to accept work with the 
employer in question. 

Immediately thereafter the Court of Appeals for the Southern 
District of Ohio, in the case of Shafer v. Pattern Makers, followed the 
La France precedent. By the contract here the employees agreed 
not only not to join a union during employment but promised to have 
no dealings with union representatives with regard to joining a union 
or regarding the conditions of his employment. 

In Kilby Manufacturing Co. v. Molders, a court of appeals again 
applied the doctrine of the La France case, in which contracts at will 
were involved, to a situation involving term contracts, under which 
nonunion employees had been hired to replace striking union molders. 
The court granted a permanent injunction but restrained only intimi- 
dation and violence, permitting peaceful methods of picketing for the 
purpose of inducing employees to quit. 

The controlling case in New York is Exchange Bakery & Restau- 
rant v. Rifkin (245 N. Y. 260 (1927)). This case involved the attempts 
of a union to organize waitresses who had signed individual nonunion 
agreements. By its decision the court of appeals, the State's highest 
court, denied an injunction, protecting the nonunion promises of the 
waitresses, holding that the promises were merely promises and not 
contracts, as they" were based on no consideration on the part of the 
emploj^er. The court said: 

The purpose of a labor union to improve the conditions under which its mem- 
bers do their work; to increase their wages; to assist them in other ways, may 
justifv what would otherwise be a wrong. So would an effort to increase its 
members and to unionize an entire trade or business. It may be as interested 
in the wges of those not members, or in the conditions under which they work as 
in its own members because of the influence of one upon the other. All engaged 



54 CONFIRMATION OF JOHN J. PARKER 

in a trade are affected by the prevailing rate of wages. All, by the principle of 
collective bargaining. Economic organization to-day is not based on the single 
shop. Unions believe that wages may be increased, collective bargaining main- 
tained only if union conditions prevail, not in some single factory but generally. 
That they may prevail it may call a strike and picket the premises of an employer 
with an intent of inducing him to employ only union labor. And ic may adopc 
either method separately. Picketing without a strike is no more unlawful than 
a strike without picketing. Both are based upon a lawful purpose. Resulting 
injury is incidental and must be endured. 

The Interborough Rapid Transit cases (159 N. E. 863 N. Y. 1928 
and 227 N. Y. S. Supplement 258 (1928)) have both denied injunctive 
protection to nonunion contracts. In the first case, Interborough 
Rapid Transit Co. v. Lavin, New York Court of Appeals said: 

Though the plaintiff's employees are prohibited from joining that association or 
union, the union may, despite the prohibition, attempt to recruit its membership 
from those emploj r ees, at least where the prohibition is not part of a contract of 
employment for a definite term. * * * They are under no obligation to the 
plaintiff to inform it that some of the plaintiff's employees are joining the union, 
so that the plaintiff may exercise its choice of retaining or disqharging the new 
members. They are not under any obligation even to urge or compel their new 
members to give their employer such information. 

In the second case, Interborough Rapid Transit Co. v. Green, the 
employment contract was for two years. The court found that this 
alleged 2-year contract, though signed by the employee, contained 
no promise by the company to employ for two years or for any 
specified period, and that even if it had it would have been made 
valueless because of the rules included in it relating to discharge. The 
court said: 

Unlimited and practically unhampered power to discharge employees is given 
to the company. * * * The contract purports to bind the employee for 
two years, while the employer is not in substance subject to a reciprocal obliga- 
tion. Where, an employee abandons all right to leave the service of his employer, 
whereas the employer reserves practically entire freedom to discharge him. 
there is no compensating consideration. 

The court held that the employment, therefore, was at will and 
that since there was no promise to work there could be no inducing a 
breach of a promise to work. 

Senator Borah. Have you ever examined the trade disputes act 
of England with regard to this particular subject? 

Mr. Green. Yes. 

Senator Borah. I saw a reference the other day to the effect that 
the trade disputes act of England permitted such things as per- 
suasion and inducement, by law? 

Mr. Green. It does; it permits it. 

Now, it has been said that the Supreme Court has never reversed 
itself. 

Senator Borah. It distinguishes. 

Mr. Green. It distinguishes. I wish to submit for the record 
and for your information an extract from the dissenting opinion of 
Justice Brandeis, in Washington v. Dawson & Co. (264 U. S.) and 
some other citations of cases where they have "distinguished" as you 
have very modestly said, Senator, which we accept as the better 
language. I would like to submit that for the benefit of the record: 

If the court is of opinion that this act of Congress is in necessary conflict with 
its recent opinions, those cases should be frankly overruled. The reasons for 
doing so are persuasive. Our experience in attempting to apply the rule and 
helpful discussions by friends of the court have made it clear that the rule declared 



CONFIRMATION OF JOHN J. PARKER 55 

is legally unsound; that it disturbs legal principles long established; and that if 
adhered to it will make a serious addition to the classes of cases which this court 
is required to review. Experience and discussion have also made apparent how 
unfortunate are the results economically and socially. It has, in part, frustrated 
a promising attempt to alleviate some of the misery and remove some of the 
injustice incident to the conduct of industry and commerce. These far-reaching 
and unfortunate results have been forseen when the decision was rendered. If 
it is adhered to, appropriate legislative provision, urgently needed, can not be 
made until another amendment of the Constitution shall have been adopted. 
For no Federal workmen's compensation law could satisfy the varying and 
peculiar economic and social needs incident to the diversity of conditions in the 
several States. 

The doctrine of stare decisis should not deter us from overruling that case and 
those which follow it. The decisions are recent ones. They have not been 
acquiesced in. They have not created a rule of property around which vested 
interests have clustered. They affect solely matters of a transitory nature. On 
the other hand, they affect seriously the lives of men, women, and children, and 
the general welfare. Stare decisis is ordinarily a wise rule of action. But it is 
not a universal, inexorable command. The instances in which the court has 
disregarded its admonition are many. 

See Lee v. Chesapeake & Ohio* Rv. Co. (260 U. S. 653, 659), overruling 
ex-parte Wisner (203 U. S. 449); Terral v. Burke Construction Co. (257 U. S. 
529, 533), overruling Doyle v. Continental Insurance Co. (94 U. S. 535) and 
Security Mutual Life Insurance Co. v. Prewitt (202 U. S. 246); Boston Store 
v. American Graphophone Co. (246 U. S. 8, 25) and Motion Picture Co. v. Uni- 
versal Film Co. (243 U. S. 502, 518), overruling Henry v. Dick Co. (244 U. S. 1); 
United States v. Nice (241 U. S. 591, 601), overruling matter of Heff (197 U. S. 
488); Pollock v. Farmers' Loan & Trust Co. (158 U. S. 601), overruling Hylton 
v. United States (3 Dall. 171); Roberts v. Lewis (153 U. S. 367, 379), overruling 
Giles v. Little (104 U. S. 291); Brenham v. German American Bank (144 U. S. 
173, 187), overruling Rogers v. Burlington (3 Wall. 654) and Mitchell v. Burlington 
(4 Wall. 270); Leisy v. Hardin (135 U. S. 100, 118), overruling Pierce v. New 
Hampshire (5 How. 504); Morgan v. United States (113 U. S. 476, 496) over- 
ruling Texas v. White (7 Wall. 700); Legal Tender Cases (12 Wall. 457, 553), 
overruling Hephburn v. Griswold (8 Wall. 603). 

I want to make it clear, gentlemen of the committee, that in pre- 
senting our opposition to the confirmation of Judge Parker we in no 
way question his integrity. The man is a perfect stranger to me. I 
never met him. Our opposition is based upon what we interpret to 
be Ms judicial attitude toward these great modern-day economic 
problems, the problems that arise out of human relations in industry, 
and we feel that it is not in accord with the highest and best interest 
of the masses of the people and of the perpetuation of our form of 
government. 

It has been said that labor in North Carolina was in favor of Judge 
Parker, and that labor in North Carolina had supported him. I 
recall the young man reading a statement from Mr. Barrett, who 
stated that he spoke for labor. Mr. Barrett in no way speaks for 
labor. As I understand it, he has been excommunicated from 
membership in the organization, because of some violation of its rules. 
Here is a telegram from Mr. Wilson, who is the president of the 
North Carolina State Federation of Labor. I wired him some 
time ago, asking him to supply me with information regarding Judge 
Parker and his record, his judicial attitude and his decisions. He 
filed a telegram with me stating that he knew him there only, that 
so far as he knew there was nothing that he could take exception to. 
Then later on I wired him and asked him if he was aware of his 
decision in the Red Jacket case. He said no, and sent me this tele- 
gram : 

At the time of my first telegram neither I nor members of the North Carolina 
Federation had discussed Parker with a knowledge of his decision in the Red 



56 CONFIRMATION OF JOHN J. PARKER 

Jacket Coal case involving "yellow-dog" contracts. Since learning of his deci- 
sion in this case, North Carolina labor is opposed to his nomination and in full 
accord with the action of the American Federation of Labor in opposing the 
confirmation of the appointment of Judge Parker as a member of the Supreme 
Court. 

Senator Borah. Do you know anything in Judge Parker's career, 
except his decisions, which would indicate his unfriendliness to labor? 

Mr. Green. No; nothing. I know nothing of Judge Parker or his 
record as a citizen or a man. I have been told by those who have 
examined his records and decisions that there is nothing in his deci- 
sions that stand out as stamping him as a man possessed of out- 
standing legal ability, and we feel sure that he has lived in a narrow 
environment, limited experience, and that he is not acquainted with 
these modern-day economic problems, and in many of the decisions 
of the Supreme Court these economic problems, arising out of human 
relationships, and out of industry, must be considered and acted upon 
fairly and justly. These decisions made by the Supreme Court, 
many times, I think through a lack of understandinh, or through a 
failure to have the facts properly presented, hang like a shadow over 
the activities of labor in the exercise of our normal functions. This 
Hitchman decision has served to reduce thousands and thousands of 
miners in isolated mining sections to a condition of industrial servi- 
tude. I can not believe that the learned members of the Surpeme 
Court of the United States would render such a decision if they were 
fully conscious of its consequences. The church can not help these 
men. The chambers of commerce will not help these poor workers. 
Fraternal organizations can only assist them along charitable lines. 
There is nobody can help them economically except the great organ- 
ized-labor movement. They become an open door to communism 
because they are crushed. We dare not go in now, because, not that 
a statute forbids us to go in, but because an order of the court in 
futuro prevent us from going in to organize these people and help them. 

Senator Overman. Isn't your remedj^ legislation? 

Mr. Green. Perhaps so. 

Senator Borah. You mean the " yellow-dog" contracts? 

Senator Overman. No; I mean isn't the remedy there in legisla- 
tion? 

Mr. Green. I want to bring to your attention, after all, that these 
decisions are usually made in accordance with the view of the court. 
His training, his environment, his impressions on these decisions are 
final, and I want to emphasize this fact again, that it is not so much, 
although we contend that Judge Parker did not follow the rule in the 
Hitchman case, but granting he did — it is not so much that he fol- 
lowed the rule, it is that he showed himself, in the language he used, 
as being in entire accord with the rule laid down in the Hitchman case, 
and in common with other groups, we are fighting to add to the 
strength and purpose and hand and mind and brain of men like Justice 
Holmes, whom we love with all our hearts, and Justice Brandeis. 

That is the position of labor frankly stated, and that is one of its 
reasons, outstanding reason, why we are opposed to the confirmation 
of Judge Parker. 

We believe that reaction will be strengthened. The power of that 
branch of the court seems to put property rights above human rights 
solidified. 



CONFIRMATION" OF JOHN J. PARKER 57 

Now, I am through, gentlemen, and I thank you for the oppor- 
tunity of presenting our protest. 

Senator Hebert. Mr. Green, you do not represent the United 
Mine Workers? 

Mr. Green. Yes, sir. We represent 5,000,000 working men and 
women associated with the American Federation of Labor, and, as I 
stated, I speak for more than a half million workers in the four 
brotherhoods not directly associated with us; that is, the locomotive 
engineers, the locomotive firemen, the trainmen, and the Order of 
Railway Conductors. 

Senator Overman. Mr. Green, there is one matter I think it is 
my duty to biing to your attention. I received a communication this 
morning which was not read, but it was put in the record. That com- 
munication said that you used some threat or some effort to threaten 
Mr. Wilson to change his mind about Judge Parker. 

Mr. Green. That is not true, Senator. I am not made that way. 

Senator Overman. I thought it was my duty to bring it to your 
attention. 

Mr. Green. I will file with you a copy of all the correspondence 
that passed between Mr. Wilson and myself, and I haven't seen him 
to talk to him personally about the matter. I had communicated 
with him from here, inquiring, as I said, about Judge Parker's quali- 
fications, because both of them are North Carolinians, and I wished 
to know. That statement is not true, and I wish to deny it most 
vehemently. I never resort to such means or methods. 

Senator Overman. I thought I ought to call it to your attention, 
because it is in this letter that will appear in the record. 

Mr. Green. I am glad you did, so that I can make the denial. Mr. 
Wilson will tell you that also. I know you have received a number of 
telegrams from labor people in North Carolina. 

Senator Overman. Yes. Do you desire me to put in the record 
those protests that came from throughout the country? 

Mr. Green. No; I don't desire that. You can dispose of them as 
you see fit. 

Senator Overman. I thought I might put them in the record just 
to indicate what they are, without reading them. 

Mr. Green. Well, if you wish to do that, all right. 

Senator Overman. Well, it is just as you wish. 

Mr. Green. It might be, in order to make the record complete, 
they should be included. 

Senator Overman. All right, Mr. Stenographer, put them in, just 
indicating who they are from, where they are from, without stating 
what they say. 

(The committee has received communications from the following, 
favoring Judge Parker's confirmation.) 

Herbert M. Bierce, Winona, Minn. 

C. A. Williams, sr., Charlotte, N. C. 

A. B. Carter, president Carter Mills, Gastonia, N. C. 

J. E. Allen, superintendent of schools, Warrenton, N. C. 

F. D. Grist, commissioner of labor and printing, Raleigh, N. C. 

J. Vines Cobb, Pinetops, N. C. 

C. F. Huneycutt, Greensboro, N. C. 

F. C. Abbott, Charlotte, N. C. 

Henry D. Williams, attorney at law, New York, N. -Y. 

Jesse L. Armfield, High Point, N. C. 



58 CONFIRMATION OF JOHN J. PARKEE 

G. Willard Rich, attorney at law, New York, N. Y. 

Irvine F. Belser, Columbia, S. C. 

Dr. L. E. Ragsdale, Donelson, Tenn. 

William I. Green, J. L. Boag, and W. E. Fish, Washington, D. C. 

M. K. Tyson, executive national secretary; Association of Negro Tailors, 
Burlington, N. C. 

J. E. Shepart, president North Carolina College for Negroes, Durham, N. C. 

W. E. Cason, general chairman Order Railway Conductors, Monroe, N. C. 

Ernest W. Bradford, attorney at law, Washington, D. C. 

James F. Barrett, former president North Carolina State Federation of Labor, 
Brevard, N. C. 

Hon. 0. Max Gardner, Governor of North Carolina, Raleigh, N. C. 

A. R. Vaughan, Engineers of the S. C. L., Brotherhood of Locomotive En- 
gineers, Raleigh, N. C. 

Henry M. Rose, National News Service, Detroit, Mich. 

Hon. Geo. Rountree, Wilmington, N. C. 

W. E. Breese, Brevard, N. C. 

(The committee has also received communications from the follow- 
ing, protesting against the confirmation of Judge Parker.) 

Central Labor Union, Building Trades Council, and Womens Union Labor 
League, Ashevile, N. C. 

Brotherhood Railroad Trainmen, Greensboro, N. C. 

Rev. G. F. Cooper, Marion, Ohio. 

Scott Williams, Parsons branch, National Association for the Advancement of 
Colored People, Parsons, Kans. 

Cape Fear Lodge Brotherhood Railroad Trainmen, Wilmington, N. C. 

Miss Rosalie McClellan; teachers association, Memphis, Tenn. 

C. P. Mulder, Salisbury Central Labor Union, Salisbury, N. C. 

C. W. Moore, secretary No. 173, Raleigh, N. C. 

T. V. Griswold, secretary Brotherhood of Railroad Trainmen, Charlotte, N. C. 

Winston-Salem Central Labor Union, Winston-Salem, N. C. 

International Association of Machinists, Washington, D. C. 

J. E. Lee, chairman Baltimore A. M. E. preachers' meeting, Baltimore, Md. 

Brotherhood of Railroad Trainmen of Nebraska, Omaha, Nebr. 

United Wall Paper Craft of North America, York, Pa. 

Journeymen Barbers International Union of America, Indianapolis, Ind. 

A. F. Whitney, president Brotherhood of Railroad Trainmen, Cleveland, Ohio. 

Walter White, secretary National Association for the Advancement of Colored 
People, New York, N. Y. 

S. B. Winslow, Raleigh, N. C. 

Miss Mary W. F. Speers, Washington, D. C. 

Nazareth hosiery strikers, Easton, Pa. 

A. J. Bradley, Troy, N. Y. 

Percy Tetlow, president local union No. 2347, Putney, W. Va. 

John L. Love, president Kansas City, Mo., branch of NAACP, Kansas City, 
Mo. 

Rev. John Haynes Holmes, New York City. 

Johns Hopkins Liberal Club, Baltimore, Md. 

J. Howard Tucker, local union 340, United Mine Workers of America, Ward, 
W. Va. 

J. E. Garrison, local union 4999, United Mine Workers of America, Javins 
W. Va. 

United Mine Workers of America, local No. 677, Hugheston, W. Va. 

Civil Liberties, Washington, D. C. 

Spencer Shop Federation, Salisbury, N. C. 

Edward H. Butts, Huntington, W. Va. 

Revolutionary Age, New York, N. Y. 

H. H. Taylor, chairman Negro Republican Party, Warrenton, N. C. 

Central Labor Union, Kansas City, Mo. 

Nelson V. McMuller, Louisville, Ky. 

George Sladovich, New Orleans, La. 

Bricklayers Local Union, Greensboro Machinists, Carpenters Local Union, 
Plasteiers and Cement Finishers, Central Labor Union, Brotherhood of Railway 
Clerks, Marcus F. Sauls, secretary North Carolina Federation of Labor, all of 
Greensboro, N. C. 



CONFIRMATION OF JOHN J. PARKER 59 

People's Legislative Service, Washington, D. C. 

William H. Werth, Tazewell, Va. 

R. T. McNulton, secretary Brotherhood of Railroad Trainmen, Memphis, 
Tenn. 

James Maloney, president Glass Bottle Blowers Association, Philadelphia, 
Pa. 

E. P. Curtis, president Railway Conductors, Cedar Rapids, Iowa. 

The following letter from Normn Thomas opposing confirmation, 
is printed in full: 

Socialist Party, 
New York City, April 4, 1930. 
Hon. George W. Norris, 

Chairman Judiciary Committee, 

United States Senate, Washington, D. C. 

My Dear Senator Norris: By formal action of the national executive com- 
mittee of the Socialist Party, I, as chairman of the committee of the party on 
public affairs, was instructed to communicate to your committee our opposition 
to the confirmation of the nomination of Judge John J. Parker to the bench of the 
United States Supreme Court and our reasons therefor. 

Our specific reasons are those already made public by labor organizations and 
the National Association for the Advancement of Colored People. Assuming 
that Judge Parker is of the same opinion in 1930 as he was when candidate for 
governor of North Carolina in 1920, he believes in the exclusion of or nonpartici- 
pation of negroes in politics. The facts in this case presented by the National 
Association for the Advancement of Colored People are in themselves a reason 
for keeping from the Supreme Court of the United States a man whose conception 
of democracy is so partial that it would exclude members of a whole race. The 
point of view Judge Parker expressed in 1920 can not but color his opinions as 
judge on race questions, no matter how great his effort after impartiality. 

It is equally certain that his decision as a judge in the Red Jacket injunction 
case practically makes it impossible legally to organize workers who under stress 
of hunger or misinformation have signed a yellow dog contract. It is impossible 
to exaggerate the danger of such decisions to peaceful progress of labor organiza- 
tions and the invitation that it gives to revolt and to violence. It may be that 
Judge Parker felt that he was bound by precedent to make this decision. A 
great judge fit for the bench at this critical time if he could not find a way around 
precedent would have found a way to dissociate himself from apparent moral 
approval of it. 

Entirely aside from these specific criticisms we are profoundly concerned that a 
judge should be elevated to the Supreme Court bench at this important juncture 
who has shown no positive sense of the importance of the restatement of legal 
principles in terms of human rights and needs, no judge worthy to sit with a 
Holmes or a Brandeis. By the majority decisions in many cases involving labor 
on the one hand a great public utilities and corporations on the other the Supreme 
Court has virtually legislated a reactionary theory of property rights which it 
has read into the Constitution. If these decisions stand it will be exceedingly 
difficult to preach to our people the efficacy of political action as a means to 
social change. The dead hand of precedent and the live hand of a judicial 
oligarch will be upon us with such weight that no majority by peaceful means can 
work its will. 

For this situation a remedy must be found in limiting the powers of the court, 
but in the meanwhile the nature and extent of those limitations will be de- 
termined in part by the character of the court's decisions. These decisions, of 
course, will be determined by the character of men appointed to the court. Ele- 
vation to the Supreme Bench gives no man infallibility. It can not change the 
background of his thinking or his approach to problems of law and life. Judge 
Parker, so far as the record goes, shows none of those characteristics of greatness 
as the expounder of law as a living thing which our times demand. He has, on 
the other hand, in specific cases shown a prejudice or narrowness of view which 
bode ill for the wisest exercise of the tremendous power which judges of the 
Supreme Court have taken to themselves. 

Therefore, we earnestly oppose his confirmation in the name of peaceful and 
constructive progress by democratic methods. 
Sincerely yours, 

Norman Thomas. 



60 CONFIRMATION OF JOHN J. PARKER 

Senator Hebert. Is it your understanding that the United Mine 
Workers are also opposed to the confirmation of Judge Parker? 

Mr. Green. I am glad you brought that to my attention. 

Senator Hebert. They were most concerned in this case to which 
you have made reference, and I wanted to make that clear on the 
record. 

Mr. Green. I wish here to read a telegram which I received from 
the attorney representing the United Mine Workers in the Red 
Jacket case. 

Senator Overman. That is the gentleman I would like to see. 

Mr. Green. Well, he isn't here, but his telegram is here. 

Senator Overman. Well, there is a man here by the name of 
Townsend. 

Mr. Green. Oh, yes. Mr. Townsend is here, and he was asso- 
ciated with Mr. Warrum. This is a telegram dated Indianapolis, 
Ind., March 26. It reads: 

Mr. Lewis has referred to me your two telegrams concerning Judge Parker. 
Judge Parker wrote the opinion of the circuit court of appeals in the Red Jacket 
case sustaining McClintic's drastic injunction based on the yellow-dog contract 
of some 300 coal companies. This injunction and opinion which the Supreme 
Court declined to review insulates some 50,000 nonunion coal miners from any 
peaceable contact or persuasive approach by the miners' organization. Our 
protest against this is of record in the hearings of the subcommittee of the Senate 
Judiciary Committee on the injunction bill and Senate Interstate Commerce 
Committee on the 1928 coal investigation. No attorney representing the mine 
workers has ever said that this was the only opinion that could have been delivered 
in the Red Jacket case. On the contrary we have always insisted that the 
opinion was an outrage on the right of organized labor. 

Henry Warrtjm. 

I wired Mr. Lewis, president of the United Mine Workers, asking 
him for information regarding Judge Parker, and the attitude of the 
miners and so forth, and this is the reply. 

Senator Overman. Does Lewis oppose the confirmation? Do you 
understand him to say that? 

Mr. Green. Yes; so far as I understand it, although I am not sure 
but what somebody is here to speak for Mr. Lewis. I am speaking 
for the American Federation of Labor, and the United Mine Workers 
are affiliated with the American Federation of Labor as a part of the 
great organized labor movement. 

Senator Overman. Well, who is Mr. Lewis? 

Mr. Green. The president of the United Mine Workers, an 
affiliated organization. 

Senator Overman. That is what I understood, but I gathered 
from the telegram that you telegraphed him to ask if he was opposed 
to this confirmation of Judge Parker. 

Mr. Green. No; I telegraphed him for information regarding the 
decisions of Judge Parker in this case. 

Senator Overman. And this is the answer you read? 

Mr. Green. That is the answer of Mr. Warrum, the attorney to 
whom he referred the message of inquiry. 

Senator Overman. Have you anything else? 

Mr. Green. No. 



CONFIRMATION OF JOHN J. PARKER 61 

STATEMENT OF E. C. TOWNSEND, CHARLESTON, W. VA. 

Senator Overman. Give your name, position, and residence. 

Mr. Townsend. E. C. Townsend, attorney at law. I reside at 
Charleston, W. Va. 

Senator Overman. Do you hold any official position now? 

Mr. Townsend. Yes, sir. I am the present State tax commis- 
sioner of West Virginia. 

Senator Overman. Did you appear in this so-called Red Jacket 
case? 

Mr. Townsend. I did. 

Senator Overman. Who did you appear for? 

Mr. Townsend. The United Mine Workers of America. 

Senator Overman. Did the question of the yellow-dog contract 
come up directly in this case? 

Mr. Townsend. You mean this yellow-dog contract, or what is 
commonly understood as the yellow-dog contract? 

Senator Overman. Yes. 

Mr. Townsend. I never so considered, Senator. I think the 
major question involved in the Red Jacket case was a question of 
jurisdiction. Of course, the question of the yellow-dog contract was 
incidentally in the case. 

Senator Borah. This injunction was based upon the yellow-dog 
contract; the injunction purported to protect the yellow-dog contract. 

Mr. Townsend. Yes. 

Senator Borah. Wasn't the legality of the contract ever questioned, 
or the validity of it? 

Mr. Townsend. You mean in this litigation? 

Senator Borah. Yes. 

Mr. Townsend. Yes. 

Senator Borah. Where? 

Mr. Townsend. In the district court. That is — I don't know that 
I understand just exactly what you mean. 

Senator Borah. Did you raise the question that the "yellow-dog" 
contract was illegal, contrary to public policy, or wanting in considera- 
tion? 

Mr. Townsend. I always argued that question. 

Senator Borah. Did you argue it to the court? 

Mr. Townsend. Yes. 

Senator Borah. Did you file a brief on it? 

Mr. Townsend. Yes. 

Senator Borah. Have you a copy of that brief? 

Mr. Townsend. I can furnish it. 

Senator Borah. I would be glad to have it. I can not find any- 
where in this decision rendered by Judge Parker where the validity 
of that contract was ever presented to the court. 

Mr. Townsend. Well, the validity of the contract was never pre- 
sented to the court, except, as I say, in the arguments that were nu.de 
in the district court, and in the circuit court of appeals. It was always 
contended that the "yellow-dog" contract was contrary to public 
policy, without mutuality, and could not be enforced. 

Senator Borah. Was that raised in your brief in the circuit court 
of appeals? 

107150—30 5 



62 CONFIRMATION OF JOHN J. PARKER 

Mr. Townsend. That was argued; yes. 

Senator Borah. In the printed brief? 

Mr. Townsend. Yes. 

Senator Borah. Can you furnish us a copy of that brief? 

Mr. Townsend. Yes; I will be glad to do that. 

Senator Borah. It appears from the decision that the court did 
not pass directly upon the validity of the contract. 

Mr. Townsend. The decision, as I understand it, said that the 
question of the validity of that contract was settled in the Hitchman 
case. 

Senator Overman. Did you conclude that was so, before the court, 
in your construction of the Hitchman case? 

Mr. Townsend. In effect; yes. 

Senator Overman. You thought the Hitchman case settled that 
question, and therefore you did not press it? 

Mr. Townsend. We did not press it as strongly as we pressed 
some other questions that were in the case. The major question in 
that case was a question of jurisdiction. 

Senator Borah. Well, the court did not so consider it. Perhaps 
I have read this decision too hurriedly. I have tried to go through 
it with care, but I have been unable to find in this opinion any place 
where the court passed upon the validity of the contract, or where it 
declares that the validity of it had been determined by any other 
court. The court did refer to the Hitchman case as sustaining its 
injunction. For instance, let me call your attention here [to this. 
The court here says: 

With respect to the second paragraph, complaint is made that it restrains 
defendant "from inciting, inducing or persuading employees of the plaintiff to 
break their contract of employment with the plaintiff." 

That, from my viewpoint, states the real vital proposition in the 
case. The court was sustaining an injunction upon the contract, 
which it seems to me ought to have been regarded as debatable, if not 
void. 

Now, it says : 

The language certainly is not so broad as that of the decree approved by the 
Supreme Court in the Hitchman coal case. 

But, it doesn't say, so far as I can see — I may have overlooked it, 
it doesn't say the Hitchman coal case was based upon the validity 
of the contract. He does sustain the decree, the breadth of the decree, 
and the far reaching import of the decree, by citing the Hitchman 
case, but what has seemed to me, as a bystander, and an outsider, is 
that the first and primary question would have been the validity of 
that contract. You certainly can not base an injunction upon an 
invalid contract, and if you could have broken the contract, the 
injunction would have had to fall. The court may have ignored it, 
but I do not find where the court passed upon the validity of that 
contract at all. They took it for granted that it was valid. 

Mr. Townsend. Well, they based it upon the Hitchman case. 
But I think the first and primary question in the Ked Jacket case was 
a question of jurisdiction, because they could not have passed upon 
the question of whether the contract was valid or invalid if they did 
not have jurisdiction. 

Senator Borah. What do you mean by jurisdiction? 



CONFIRMATION" OF JOHN J. PARKER. 63 

Mr. Townsend. Jurisdiction to entertain the case, on the theory 
of whether or not it was an interference with interstate commerce. 
That question had to be decided in the affirmative before they could 
pass on any other question. 

Senator Borah. Well, the court did pass on that. 

Mr. Townsend. That was the question upon which the United 
Mine Workers mainly predicated their fight. 

Senator Borah. Your contention was that the digging of coal was 
not interstate commerce? 

Mr. Townsend. The mere mining of coal was not interstate 
commerce. 

Senator Hebert. And that was sustained? 

Mr. Townsend. No; not in that respect. If it had been, then the 
circuit court of appeals could not have entertianed jurisdiction of the 
case. 

Senator Borah. The circuit court of appeals took the view that 
the Supreme Court of the United States had decided that proposition 
also, that while the actual mining of coal was not interstate commerce, 
yet if it was mined and traveling in interstate commerce constantly — 
and that was the purpose of 90 per cent of it, I think they said — they 
held it was interstate commerce. But that was not, to me, or to my 
mind, the question which disturbed most the court. 

Mr. Townsend. Well, it may not have been. 

Senator Borah. They went into the question of sustaining the 
injunction against permitting the union to persuade the men to 
violate the yellow-dog contract. 

Mr. Townsend. That is true. 

Senator Borah. Do you know anything in the attitude of Judge 
Parker which would indicate to you he is unfriendly to labor, other 
than his decision in this case? 

Mr. Townsend. I do not. 

Senator Borah. What in this decision do you point out as indi- 
cating that he approved of this yellow-dog contract, and an injunction 
of this breadth, and so forth? 

Mr. Townsend. I think Judge Parker felt in this case that he was 
bound by the decision in the Hitchman case, so far as the yellow-dog 
contract was concerned. 

Senator Borah. Was that argued before the court? 

Mr. Townsend. That was argued. 

Senator Overman. But I understand you and the attorneys with 
you did not press that fact, because you believed the Hitchman case 
settled that question. 

Mr. Townsend. We believed the Hitchman case, in the main, 
settled that question. We did argue that question in this way: The 
jurisdiction in the Hitchman case 

Senator Borah. I think the Hitchman case settled about every- 
thing in the labor world. 

Mr. Townsend. I think you are right. 

Senator Borah. I want to read something here from the Hitchman 
case. On page 261 : 

Respecting the sweep of the injunction, we differ somewhat from the result 
reached by the district court, so far as it restrains, first, interfering or attempting 
to interfere with plaintiff's employees for the purpose of unionizing plaintiff's 
mine, without its consent, by representing or causing to be represented to any 



64 CONFIRMATION OF JOHN J. PARKER 

of plaintiff's employees or to any person who may become an employee of the 
plaintiff, that such person will suffer, or is likely to suffer, some loss or trouble,, 
by continuing in the employ of the plaintiff, or because the plaintiff runs a. 
nonunion mine. 

That is the first clause they sustained. 

In other words, if a union man met a nonunion man and said, 
"You are going to lose out in this proposition, and you can only win 
out by joining the union, " he was within the purview of this injunction. 

It makes union labor simply a painting on the wall. 

Senator Overman. You are reading from the Hitchman case? 

Senator Borah. I am reading from the Hitchman case. That is 
what Mr. Green said was the Dred Scott decision on labor. 

It continues: 

Second, interfering or attempting to interfere with plaintiff's employees for the 
purpose of unionizing the mine without plaintiff's consent, and in aid of such 
purpose, knowingly and lawfully bringing about the breaking, by plaintiff's 
employees of contracts of service, known at the time to exist with plaintiff's 
employees. 

Senator Hebert. Do they discuss that yellow-dog contract there? 
Senator Borah. They just took it for granted it is a valid contract,, 
it seems. [Continues reading:] 

Third, knowingly and wilfully inciting plaintiff's employees, present or futuie r 
to leave plaintiff's service, on the ground that plaintiff does not recognize the 
United Mine Workers of America, or runs a nonunion mine. 

Fourth, interfering or attempting to interfere with plaintiff's employees, so as 
knowingly, and willfully to bring about a break of the plaintiff's employees 
present and future contracts of service, known to the defendant to exist, and 
especially from knowingly and willfully enticing such employees', present or 
future, to leave the plaintiff's service without the plaintiff's consent. 

This is the situation as I see it: They had what they called the 
yellow-dog contract 

Mr. Townsend. That is the Hitchman case? 

Senator Borah. Yes. The Supreme Court decided that a man, 
under that contract, could not be talked to by anybody in order to 
induce him to change his mind, and that you could not unionize the 
mine without the mine owner's consent. 

Mr. Townsend. I do not think it is quite that broad. 

Senator Borah. Yes; that is just how broad it is: 

To leave the plaintiff's service without the plaintiff's consent. 

Mr. Townsend. Yes; under the contract. 

Senator Borah. I had supposed that if there was anything on 
earth that was well established, it was that a man could quit work 
whenever he got ready. 

Mr. Townsend. He can. He can under this contract. 

I don't want you, Senator, or this committee, to get the idea that I 
am defending this contract, because I am not. I have always con- . 
demned it, and I condemn it now as against public policy, without 
mutuality, and unfair to the employee in every respect. 

I started to say a moment ago, if you will permit me — you asked a 
question that I started to answer and did not conclude. 

Senator Borah. Excuse me, please. Go ahead. 

Mr. Townsend. Jurisdiction in the Hitchman case was obtained 
by the court upon the ground of diversity of citizenship. The con- 
tract involved in that transaction was simply an oral contract. 



CONFIRMATION OF JOHN J. PARKER 65 

What the organizers of the United Mine Workers undertook to do in 
that case was to organize the miners, while they were under that 
contract not to join a union, and allow the miners to continue in the 
employ of the compan}^. 

Senator Borah. Yes. That is one proposition of it, but the 
Supreme Court segregates the two propositions. It refers to the 
fact that they were secretly getting miners to join the union, professing 
not to be members of any union, and then it segregated and separated 
from that the other proposition. 

Mr. Townsend. That is true. I was discussing that proposition. 
Continuing a little further; the plan in that case was that they were 
to secretly join the union and continue in the employ of the company 
until a sufficient number of them had joined, so that they, to use the 
language that they used, could "crack off," at which time they would 
all walk out in a body and close down the mines. 

The district court and the Supreme Court of the United States 
sustained the oral contract, as representatives of the miners' union 
always contended, upon the ground of deceit and fraud that was 
practiced in connection with that contract, and that is the position 
we took in the later cases. But the later cases were distinguishable 
from that case, because that case was decided upon the ground of 
fraud and deceit, and if in good faith the representatives of a labor 
organization asked a person who was under a contract of employment 
to join a union, they had a right to do that. They had a right to ask 
them to join a union, if it was in good faith and openly. 

Senator Borah. Does the Supreme Court hold that? 

Mr. Townsend. That is the very thing the Supreme Court did 
not hold. 

Senator Borah. Yes; I thought so. 

Senator Overman. Mr. Townsend, in reading this Hitchman case, 
I gather there was no conspiracy in that case, no force, whereas Judge 
McClintic finds in his Red Jacket decision, that there was menace, 
force, and disturbance of all kind. Is that so? 

Mr. Townsend. Well, that is true, in the Red Jacket, that there 
was force involved, and not the mere question of the yellow-dog 
contract. Of course, the yellow-dog contract was sustained. What 
I mean to say is this, that I think the opinion rendered by Judge 
Parker in the Red Jacket case, in so far as the yellow-dog contract 
was concerned, was because he felt he was bound by the decision of 
the Supreme Court in the Hitchman case. 

Senator Overman. And you felt he was bound by it? 

Mr. Townsend. Well, I didn't feel that way about it at that time, 
and I am not going to say that I feel that way now, because I repre- 
sented the defendant, but he felt that way about it, and he had a 
right to feel that way. He was the judge in the case, and he had the 
last guess about it. 

Senator Overman. Why didn't you press the validity or non- 
validity of this contract? 

Mr. Townsend. We did. 

Senator Overman. You said you did indirectly. You said you 
didn't press it directly, because you were satisfied it was settled in 
the Hitchman case. 



66 CONFIRMATION OF JOHN J. PARKER 

Mr. Townsend. I did feel it was, to a large extent, settled in the 
Hitchman case, and I feel that way now, that to a large extent that 
question was settled in the Hitchman case. 

Senator Overman. And that is the reason you did not press that 
point? 

Mr. Townsend. That is the reason we did not press it as strongly 
as we pressed some other questions upon the major issue involved in 
that case, which was the question of jurisdiction. At the time the 
Red Jacket case was instituted the decision of the Supreme Court of 
the United States had been rendered in the Foundries case, and the 
Supreme Court decision had also been rendered in what was known 
as the Leather Workers' case. In those two cases we had reason to 
believe that the mining of coal was in no way involved in interstate 
commerce, and also the first decision in the Coronada case held speci- 
fically and distinctly, and directly, that the mining of coal was not 
interestate commerce. Between the time the Red Jacket case was 
instututed and finally reached the United States Supreme Court, the 
second decision in the Coronada case came from the Supreme Court 
of the United States, in which that court held that when interfering 
with the mining of coal, or if a labor organization interfered with the 
mining of coal, with intent to prevent its shipment in interstate com- 
merce, that then it came within the Sherman Act and the Clayton 
Act, and the court had jurisdiction to entertain the case. That case 
was followed by the Stone Cutters' case, and by the Brinns case, all 
to the same effect. When this Red Jacket case finally reached the 
Supreme Court- 

Senator Borah. Do you mean the Red Jacket case went to the 
Supreme Court? 

Mr. Townsend. I mean the Circuit Court of Appeals, Judge Parker 
had confronting him, on the one hand, on the question of jurisdic- 
tion, the doctrine laid down in the Leather Workers case, and the 
doctrine laid down in the first Coronada case, which would seem to 
indicate that there was no question of Federal jurisdiction involved, 
because the mining of coal was not interstate commerce. On the 
other hand, he had confronting him the decision of the Supreme 
Court of the United States in the second Coronada case, in the 
Brinns case, and in the Stone Cutters' case, all of which tended to 
show that there was a question of ' interstate commerce involved, 
and in the Red Jacket case he, in my judgment, followed the weight 
of the decisions of the Supreme Court of the United States 

Senator Borah. On the question of jurisdiction? 

Mr. Townsend. Yes; and also followed the weight of the Supreme 
Court of the United States on the question of "yellow dog" contracts. 

Senator Hebert. Mr. Townsend, is this the language which' you 
have in mind in the second Coronada case? I quote now: 

When the intent of this unlawful preventing of the manufacture or pro- 
duction is shown to be to restrain or control the supplj r entering and moving in 
interstate commerce, or the price of it in interstate markets, their action is a 
direct violation of the antitrust act ? 

Mr. Townsend. That is it; yes, sir. 

Senator Borah. I wish you would supply us with the briefs in 
which the validity of this contract was argued. 

Mr. Townsend. I will supply you with those, Senator. I have a 
bound volume of them. 



CONFIRMATION OF JOHN J. PARKER 67 

Senator Borah. Did Judge McClintic render a written opinion? 

Mr. Townsend. No. He made a finding of fact. 

Senator Overman. Were the facts found by him in writing, and 
presented to Judge Parker? 

Mr. Townsend. Yes, sir. 

Senator Overman. They were? 

Mr. Townsend. Yes, sir. 

Senator Overman. I suppose they set them forth in this opinion? 

Mr. Townsend. That is in the record. 

Senator Overman. Then, he goes on and says there was a demon- 
stration about some tenement houses owned by the company, and 
an interference with the people who lived in those. Do vou remember 
that? 

Mr. Townsend. Yes, sir. The finding of fact of Judge McClintic 
was to this effect in that respect; that the tenement houses that were 
occupied by the miners at the time they went out on strike, when 
they ceased to work for the coal company, that they became tres- 
passers and were not entitled to occupy, nor were they entitled to 
possession cf the house. 

Senator Overman. That is under a West Virginia statute? 

Mr. Townsend. Under a West Virginia decision, a decision of the 
Supreme Court of West Virginia, and that is what the Supreme 
Court of West Virginia did decide; that the relationship of land- 
lord and tenant did not apply to those houses, but the possession of 
the house was merely incident to the employment in the mines. 

Senator Overman. I read the decision in which they said there 
were simply speeches or persuasions. There was more in this case 
than simply speeches and persuasions, was there not? 

Mr. Townsend. You mean in the Red Jacket? 

Senator Overman. Yes. 

Mr. Townsend. Oh, yes; there was a great deal of violence and 
intimidation. Nobody objects to the granting of an injunction in 
connection with the destruction of property, or intimidation or vio- 
lence. 

Senator Overman. There was in this case, you say? 

Mr. Townsend. There was, in connection with the contract of 
employment. The miners' organization did not undertake to defend 
intimidation and violence and destruction of property. It never has. 

Senator Borah. Are you now an employee of the miners, at this 
time? 

Mr. Townsend. No, sir; I am not. I want to add to that, Senator, 
by saying that I am in full sympathy with their efforts to rid them- 
selves of the "yellow-dog" contract and the use of the injunction in 
labor disputes, to the extent to which they have been used. I want 
my opposition upon that question made entirely clear. But I want 
to make this additional statement, if you will pardon me. I do not 
think the decision of Judge Parker, in this case, according to my 
idea of it, is sufficient to warrant his disapproval as a member of the 
Supreme Court of the United States. 

Senator Borah. If you thought that Judge Parker believed, as an 
economic proposition, in the "yellow-dog" contract, and believed in 
that way to manage labor, leaving out now the question that he felt 
constrained to follow a superior court; if you felt he had attained the 



68 CONFIRMATION OF JOHN J. PAEKEB 

view that that was a correct position and correct view of the situation, 
now would you feel about it? 

Mr. Townsend. Let me answer that by this statement: That if 
this case affecting the question of the "yellow-dog" contract had been 
before Judger Parker for the first time, and that had been the first 
decision upon the question, and he had decided it like he did, I would 
have then said that he should not be confirmed as a member of the 
Supreme Court of the United States, because his ideas of economics, 
in so far as they relate to that question, were wrong. 

Senator Borah. Well, as he decided it in the lower court, it is alto- 
gether probable that he would be of the same opinion upon the 
Supreme Court bench. Having construed the decision of the Supreme 
Court of the United States in the way he has, I would take it that if 
this question would arise again, he would take it it was settled by his 
court. 

Mr. Townsend. He would probably feel it was settled by the 
Supreme Court of the United States, yes; and I would not criticize 
him for that, from my standpoint. If he felt it was settled, I think 
he would have the right to follow precedent in that respect. I think 
this whole question of the "yellow-dog" contract, so far as it affects 
the Federal courts, is one for legislation, under its present status, and 
not a court decision. 

Senator Borah. I don't understand why the validity of a contract 
is not always a judicial question. 

Mr. Townsend. It is. 

Senator Borah. If the "yellow dog" contract is invalid for the 
reasons which have been stated, it is purely a judicial question. 

Mr. Townsend. It has never been held to be invalid. 

Senator Borah. Well, I say, if it is invalid — or whether it is valid 
or invalid for the reasons stated, it is purely a judicial question, 
isn't it? 

Mr. Townsend. Yes, and as I construe the decision, that question 
has been passed upon by the Supreme Court of the United States. 

Senator Borah. Well, assuming that the majority of the Supreme 
Court of the United States has passed on it to that effect, and we 
continue to put other members on the court holding to the same 
opinion, it would be a pretty well settled proposition, wouldn't it? 

Mr. Townsend. I think it is settled now. It can not be settled 
any stronger than it has been settled in the Hitchman case. 

Senator Hebert. If the contract has been held valid, then the only 
way to do away with it is by legislation, isn't it? That is, if the 
courts have held it valid. 

Mr. Townsend. The subcommittee of the Judiciary Committee 
drew a very excellent bill in connection with the use of injunctions in 
labor disputes, which I understand is now pending before Congress, 
and that bill I heartily indorse. 

Senator Borah. Well, just how far can legislation go on that kind 
of a question until the courts contend it has impinged upon its func- 
tions? That is also a very delicate question, as illustrated in Adair 
and Coppage cases. 

Mr. Townsend. It is. 

Senator Borah. It may be so now that it is settled, that it would 
be amenable alone to effective legislation, but originally it was a 



CONFIRMATION OF JOHN J. PARKER 69 

judicial question which went before these people. They did not re- 
ject it because it was not a judicial question. They assumed to pass 
on it. 

Mr. Townsend. They did pass on it in the Hitchman case. But 
Judge Parker could not have passed on that question in the Red 
Jacket case, except that court had jurisdiction to pass on it under 
acts of Congress, the Sherman Act, and the Clayton Act. That is 
the only thing that gave Judge Parker jurisdiction to entertain the 
case at all. 

Senator Borah. Suppose Judge Parker had stricken out, or modi- 
fied the decree, by striking out " persuading the employees of the 
plaintiffs to break their contract. " That would not have been error, 
would it? 

Mr. Townsend. Not if he had first decided he had jurisdiction to 
entertain it. 

Senator Borah. He decided he had jurisdiction, and then he took 
up the question of the decree. If he had modified the decree to strike 
out all reference to persuading them to break their contract, that 
would have been within his jurisdiction, wouldn't it, notwithstanding 
the Hitchman case? 

Mr. Townsend. It would, yes, sir; unquestionably. Then the 
question would have arisen whether or not it was in conflict with the 
Hitchman case. We tried to get into the Supreme Court of the 
United States with this Red Jacket case, and were unable to do so. 

Senator Borah. Why did they decline jurisdiction? 

Mr. Townsend. There was no reason given. We tried to review 
it by writ of certiorari, and they denied it. 

Senator Overman. In the certiorari did you bring up the question 
of the "yellow-dog" contract? 

Mr. Townsend. That is argued in the brief presented to the 
Supreme Court of the United States, in support of the petition for 
certiorari. 

Senator Overman. It is? 

Mr. Townsend. Yes, sir. 

Senator Overman. The validity of that contract? 

Mr. Townsend. Yes, sir; and I would be glad to supply the 
committee with a copy of these briefs. 

Senator Overman. And yet they refused you? 

Mr. Townsend. They refused to review the Red Jacket case. 
Construed another way, everything, as I understand that case, 
that was passed upon by Judge Parker, had been passed upon directly 
or indirectly by the Supreme Court of the United States. 

Senator Borah. I think that is all I have. 

Mr. Green. Senators, I should like to make this observation for 
the benefit of the record, in order not to create any misunderstanding 
that may have been caused by reason of the statement made by Mr. 
Townsend. Mr. Townsend does not speak for anyone connected 
with the American Federation of Labor. He does not speak for the 
American Federation of Labor. He is not wdth us. He comes here 
as an attorney, as I understand it, and as tax commissioner for 
West Virginia. We are not in accord with the views he has expressed 
just now. We do not agree with him. 



70 CONFIRMATION OF JOHN J. PARKER 

Mr. Townsend. I do not claim to represent the American Fed- 
eration of Labor. I am expressing my own individual views. 

Senator Borah. I understood that. 

Air. Townsend. And nobody else. 

Senator Overman. Do you desire to say anything else, Mr. 
Townsend? 

Mr. Townsend. No, sir. 

Senator Overman. There was a man by the name of Fish, who 
came to my office this morning and he presented a paper which I did 
not read. If he desires to appear and read it, he may. 

STATEMENT OF H. E. FISH, EX-BUSINESS AGENT, HOISTING 
ENGINEEKS, LOCAL NO. 77, OF WASHINGTON, D. C. 

Mr. Fish. Mr. Chairman and honorable members of this com- 
mittee, at the present time I represent the majority of that local 
organization, by a bound contract, signed. 

I am not a public speaker, and therefore I would much rather the 
secretary would read this document that I have brought up here, 
for the purpose of showing this committee of honorable men there 
are worse conditions existing within the rank and file of the Inter- 
national Union of Operating Engineers of the American Federation 
of Labor than there was in the mines of West Virginia. 

I thank you, gentlemen. If you care to read this 

Senator Borah. Just let it be printed in the record. 

Who do you represent, Mr. Fish? 

Mr. Fish. 1 represent no organization. I represent myself and 
the majority of the members of the local organization of Hoisting 
Engineers. I was suspended a year ago to-morrow without hearing, 
without notice of hearing, without trial of any description. 

Senator Borah. Does this document have any relation to Judge 
Parker? 

Mr. Fish. Yes, sir. 

Senator Borah. Do you know Judge Parker? 

Mr. Fish. I do not. 

Senator Hebert. Are you opposed to his confirmation? 

Mr. Fish. No, sir; I am not. He was appointed by the President 
of the United States of America, and that satisfies me he is all right. 

Senator Overman. Really, this paper of yours is not anything 
with regard to Parker's confirmation or against him. I judge it is 
just an attack on some organization or something. 

Mr. Fish. Within the rank and file of the American Federation 
of Labor; yes, sir. I have affidavits to support it. I have copies 
of injunctions. I have bills of complaint. 

Senator Overman. We are not trying the American Federation 
of Labor. We are trying Judge Parker as to whether he shall be 
confirmed or not. 

Senator Borah. Well, suppose we have this printed in the rec'ord. 

Senator Overman. All right, let it be printed. 



CONFIRMATION OF JOHN J. PARKER 71 

(The document presented by Mr. Fish is as follows :) 

THE INDUSTRIAL SERVITUDE WHICH EXISTS IN THE INTERNATIONAL UNION OF 
OPERATING ENGINEERS AND THE AMERICAN FEDERATION OF LABOR 

Washington, D. C, April 2, 1930. 
To the United States Senate: 

Gentlemen: William Green, president of the American Federation of Labor, 
has been accredited by the press with riling or intentions of filing with the Senate 
Judiciary Committee a written objection to the confirmation of Judge Parker as 
associate judge of the Supreme Court of the United States. 

The objections of labor, as represented by President Green, are based on 
Judge Parker's record as a member of the United States Circuit Court of the 
Fourth District, particularly the decision upholding the injunction of Judge Mc- 
Clintic, of West Virginia, which prohibited mine workers from soliciting mines 
who had been forced to sign the so-called "yellow-dog" contract to become 
members of the Mineworkers Union. President Green claims this decision 
shows Judge Parker placed property rights above and superior to human rights 
and that he approved an injunction which virtually reduced the conditions of the 
miners of West Virginia to a point approximating industrial servitude. It is also 
stated that President Green will call on each Member of the Senate to refuse to 
confirm the nomination of Judge Parker. 

In view of the foregoing we wish to place the following facts before the Senate 
Judiciary Subcommittee and the United States Senate in order that they may 
judge for themselves the value of the testimony and opposition of the American 
Federation of Labor's representatives. 

The International Union of Operating Engineers composed of union operators 
of power-driven machinery with headquarters located at 1003 K Street NW., 
Washington, D. C, and with Arthur M. Huddle as general president, is affiliated 
with the American Federation of Labor and as such is under the guiding hand of 
President Green. 

Shortly after assuming office nearly nine years ago, General President Huddle 
instituted what he has since termed a policy of international supervision of local 
unions which he places into effect in the following manner: 

By first suspending all officers of the local union who do not signify their 
willingness to comply with his demands. Then placing a man of his choice over 
the local union with the title of international supervisor, who assumes full charge, 
takes over all moneys, books, and personal property of said local union, and then 
proceeds to illegally suspend all members who haven't become cowed enough to 
submit without a protest. Said supervisor immediately places into effect the 
following rules: 

Any member who solicits employment from any employer for himself or any 
other' member or accepts employment at his trade will be fined and suspended. 

Employers must hire all members through office of supervisor. 

Any member who talks to or enters the home of a suspended member will be 
fined and suspended. 

There will be no election of officers in this local union. 

The supervisor has the power to assess each member any amount at any time 
he may deem necessary. 

The' supervisor has complete control of all funds of this local union. 

The supervisor has the power to suspend any or all members who do not abide 
bv his decisions. 

* The supervisor's decisions supersede the constitution and by-laws of this 
organization. 

The supervisor is answerable to no one but the general president. All dues 
must be paid six months or a year in advance to remain in good standing and 
to obtain work. 

All employers having in their employ a suspended member are ordered to 
discharge him at once and upon failure to comply with said order a strike is called, 
thereby forcing them to accede to the demands of the supervisor. 

This method of intimidation has been consistently used even to the extent of 
having several suspended members discharged from six or more positions thereby 
instituting what could be legallv termed a black list since it is being done in 
all principal cities of the United States and all for the purpose of impressing 
upon the minds of the members that they must be subservient to the wishes of 
the supervisor which in turn places them under the complete domination of 
General President Huddle. 



72 CONFIRMATION" OF JOHN" J. PARKER 

As an illustration of the extreme to which General President Huddle carries 
his policy of blacklisting we reprint herewith a copy of a letter sent to Local No. 5 
of the International Association of Bridge, Structural, and Ornamental Iron 
Workers : 

Headquarters International Association of Bridge, 

Structural, and Ornamental Iron Workers, 

St. Louis, Mo., December 14, 1929. 
Mr. L. L. Myers, 

Alexandria, Va. 
Dear Sir and Brother: I have been notified by Secretary-Treasurer Dave 
Evans of the International Union of Operating Engineers that two of their 
ex-members named Green and Fish, who have been suspended, are working at 
iron work, and made application to join your local union, and the operating 
engineers request that these members not be permitted to join your local union. 
I understand President Morrin had this matter up with Brother Locker and 
gave him instructions that these two men should not be permitted to member- 
ship in your local union. Therefore his instructions should be complied with 
by your local union, and if they are working on permits their permits should be 
revoked. 

Hoping you will let me hear from you regarding this matter and that these 
instructions are being complied with, and with best wishes, I am, 
Fraternally yours, 

W. J. McCain, General Secretary. 

■ The general executive board of the International Union of Operating Engineers 
is composed of the general officers, consisting of general president, five vice presi- 
dents and the general secretary-treasurer. The five vice presidents are occupy- 
ing positions as supervisors over local unions, subject to dismissal by the general 
president. The general executive board has the power and authority to decide 
all appeals from the decision of the general president and all other questions 
which may arise between quadrennial conventions, in other words the adminis- 
trative, legislative, and judiciary authority of the organization is vested in a 
small group of seven men with the general president, by virtue of his usurpation 
of power, dominating the entire board, hearing appeals from his own decisions 
and passing judgment upon them, thereby subjecting the entire organization of 
approximately 40,000 men to his whims or else the ultimate suspension. 

From the foregoing paragraph you will readily perceive the waste of time and 
money incurred by the members who appeal to the general executive board for 
relief from the general president's persecution. 

The thought may occur to you that if you were placed in a position similar to 
the members of the engineers' union, you would promptly sever all connections 
with the organization and work on open-shop work, but bear in mind organized 
labor controls practically all building work, making it next to impossible to secure 
employment unless you are a member in good standing and servile to the wishes 
of a labor czar of General President Huddell's type. 

The members realizing the utter impossibility of obtaining justice in their 
organizations tried repeatedly to obtain an audience with President Green with 
the faint hope of justice prevailing in the American Federation of Labor. 

They were finally referred to Secretary Morrison who stated the American 
Federation of Labor was familiar with conditions existing in the engineers' 
union, but would do nothing for them because they granted general presidents 
complete autonomy with the issuance of their charters. 

When questioned about local autonomy as prescribed by labor constitutions 
he declined to comment and advised the delegation to submit to General President 
Huddell. 

At present there are over 104 local unions suffering under enforced supervision 
comprising a large majority of the entire membership of engineers and with 
supervisors casting the vote of the entire membership of their separate local 
union, it is impossible to remove general officers by a referendum vote, with the 
result that they have perpetuated themselves in office with no redress on the part 
of the rank and file. All of the foregoing acts were direct violations of the Inter- 
national Union of Operating Engineers' constitution. 

It is apparent to all persons familiar with conditions existing within the engi- 
neers' organization that they are in a state of bondage or servitude far worse than 
that attributed to the miners of West Virginia by President Green. 

After enduring despotism until it became unbearable, the members of all prin- 
cipal cities have applied to the Supreme Court of the District of Columbia for 
relief. 



CONFIRMATION OF JOHN J. PAEKER 73 

Through their attorney, Samuel Untermeyer, they have sought an injunction 
restraining General President Huddle from enforcing and retaining supervision, 
his removal from office, and have also charged him with conspiracy and unlawful 
disbursement of funds. 

From authoritative sources we have learned that other international presi- 
dents are eagerly waiting the outcome of this suit in order to inaugurate super- 
vision in their respective organizations. 

With men of that type casting the elective vote in the American Federation of 
Labor conventions with power to elect or reject the reason is apparent to all why 
President Green is objecting to Judge Parker's confirmation. 

Since labor injunctions seldom do more than prohibit strikers from molesting 
strike breakers and restricts picketing, labor leaders haven't much fear on that 
score, but when they see a man appointed who has demonstrated that he has 
courage enough to render a decision in a labor dispute according to the merits 
of the case, the alarm is widespread, striking terror in the hearts of men of General 
President Huddle's type, who see themselves exposed by future court actions 
before a fair judge. 

It is our suggestion to President Green that before he attacks the judicial state 
of mind and qualifications of a renowned citizen appointed to the bench in the 
highest court of our land by the President of the United States that he first wipe 
out all stains of servitude existing within the American Federation of Labor 
sponsored by his leaders and advisers. 

We earnestly request the Judiciary Subcommittee to consider this letter while 
hearing arguments of the representatives of the American Federation of Labor. 

Respectfully submitted. 

William I. Green. 
Henry E. Fish. 
Robert Ely. 

The above signers of this document are former members of the International 
Union of Operating Engineers, and all the facts contained in this document can 
be proved, upon request. 

STATEMENT OF ARTHUR M. HUDDLE, GENERAL PRESIDENT 
INTERNATIONAL UNION OF OPERATING ENGINEERS 

Mr. Huddle. Mr. Chairman, I am president of the International 
Union of Operating Engineers, which this man (referring to Mr. 
Fish) was turned out of, for violating all the laws of our International 
Union. 

He has gone into the courts of the city of Washington and the courts 
have refused to hear his case. He now has the case in the courts of 
the city of Washington, and Mr. Untermeyer has been retained as 
as attorney for a group of bolsheviks like this man here, about four 
or five hundred of them, that claim to be American citizens and loyal 
to President Hoover. The courts have not sustained them anywhere. 

If you print that in the record, you will only ball up your 
record. They are only here in favor of Judge Parker because the 
American Federation of Labor is opposed to it, and anj^thing the 
American Federation of Labor is opposed to they are in favor of and 
anything the American Federation of Labor is with they are against 
it. That is the reason he is on the outside. 

Senator Overman. Well, I said we wouldn't consider anything that 
was fighting the American Federation of Labor. 

Mr. Huddle. Well, that is all he is here for. 

Senator Borah. Well, he has presented his petition, and he is 
entitled to have it filed. 



74 COlSTFIBMATIOlSr OF JOHN J. PARKEE 

STATEMENT OF WALTER WHITE, SECRETARY NATIONAL ASSO- 
CIATION FOR THE ADVANCEMENT OF COLORED PEOPLE 

Mr. White. My name is Walter White, acting secretary for the 
National Association for the Advancement of Colored People, with 
headquarters at 69 Fifth Avenue, New York City. 

Gentlemen of the Subcommittee of the Senate Committee on the 
Judiciary : 

May I, on behalf of the National Association for the Advancement 
of Colored People, present to the Subcommittee of the Senate Com- 
mittee on the Judiciary, to which has been referred for consideration 
the nomination of the Hon. John J. Parker, of Charlotte, N. C, for 
appointment to the United States Supreme Court, the reasons why 
we respectfully urge that this nomination be not approved? 

In 1920 Judge Parker was the Republican candidate for governor 
of North Carolina. When he and his party were charged with plans 
to organize the negro vote in support of Judge Parker's candidacy, 
Judge Parker is reported by the Greensboro Daily News of April 19, 
1920, as declaring in his speech of acceptance of the gubernatorial 
nomination before the Republican State convention of that year: 

The Republican party in North Carolina has accepted the amendment in the 
spirit in which it was passed and the negro has so accepted it. I have attended 
every State convention since 1908 and I have never seen a negro delegate in any 
convention that I attended. The negro as a class does not desire to enter politics. 
The Republican Party of North Carolina does not desire him do do so. We 
recognize the fact that he has not yet reached that stage in his development 
when he can share the burdens and responsibilities of government. This being 
true, and every intelligent man in North Carolina knows that it is true, the 
attempt of certain petty Democratic politicians to inject the race issue into every 
campaign is most reprehensible. I say it deliberately there is no more dangerous 
or contemptible enemy of the State than men who for personal or political advant- 
age will attempt to kindle the flame of racial prejudice or hatred * * * the 
participation of the negro in politics is a source of evil and danger to both races 
and is not desired by the wise men in either race or by the Republican Party of 
North Carolina. 

On Wednesday, March 26, the National Association for the Ad- 
vancement of Colored People telegraphed Judge Parker asldng him 
if he had been correctly quoted by the Greensboro Daily News and 
gave him opportunity to state whether or not the'' views which the 
Greensboro Daily News attributed to him in 1920 were still held by 
him in 1930. Inquiry of the telegraph company reveals that this 
message was delivered to Judge Parker and signed for by K. Howard. 
No reply has been received from Judge Parker and we feel that it is 
safe to assume that he was correctly quoted by the Greensboro Daily 
News and that his views have not changed within the past decade. 

The amendment to which Judge Parker referred in the first sentence 
of the foregoing statement is the one added to the constitution of 
North Carolina in 1900 which provided, among other steps, for the 
pajmient of a poll tax, for successful meeting of literacy tests by 
voters, and for the inclusion of a grandfather clause in the State 
constitution. The grandfather clause is the key to the admitted 
purpose of these amendments — namely, to eliminate negroes from 
participation as voters. The North Carolina grandfather clause 
provided that one who could vote in North Carolina on January 1, 
1867, or who was a lineal descendant of one who had such right to 
vote prior to 1867, might have his name entered on the - permanent 



CONFIRMATION OF JOHN J. PARKER 75 

register prior to December 1, 1908, and thereby become a voter for 
life, though he had neither property nor literacy. 

In the case of Guinn & Beal u. The United States (238 U. S. 347) 

Senator Overman. Well, I will get a copy of the statute and put 
that in the record. 

Mr. White. Very well. 

In the case of Guinn & Beal v. The United States (238 U. S. 347), 
the Supreme Court of the United States, in 1915, declared such 
grandfather clauses to be unconstitutional. Judge Parker's state- 
ment as quoted, however, indicates clearly that the real purpose 
back of the constitutional amendment of 1900 — namely, to dis- 
franchise negroes, had his full approval. 

The consequences of confirmation of the nomination as a Justice of 
the United States Supreme Court of one who holds the views which 
this statement of Judge Parker's indicates he holds may be seen, if 
one considers what would have been Judge Parker's attitude had he 
been sitting on the Supreme Court Bench when the case of Guinn & 
Beal v. The United States was brought before that court for decision; 
or what would be his attitude were he now confirmed and that issue 
were brought before the court subsequent to his confirmation instead 
of having been settled in 1915. It is a reasonable certainty that one 
holding such views could not have approached this vitally important 
question with that dispassionate, unprejudiced, and judicial frame of 
mind which would enable him to render a decision in accordance with 
the Federal Constitution. 

Judge Parker as a lawA^er and as a judge of the Federal court could 
not but have known that such a statement and such practices as were 
advocated and approved by him in the foregoing statement were an 
open, shameless flouting of the fourteenth and fifteenth amendments 
to the Federal Constitution. The National Association for the 
Advancement of Colored People is convinced that no man who enter- 
tains such ideas of utter disregard of integral parts of the Federal 
Constitution is fitted to occupy a place on the bench of the United 
States Supreme Court. Twelve million American negroes and all 
white Americans who have a regard for law and order can not help 
condemning an attitude which indicates a willingness to support some 
laws and to disregard others when political expediency dictates. 

May we emphasize that we have no personal animosity against or 
personal knowledge of Judge Parker. Our opposition to him is based 
upon the conviction that he does not possess the standards which 
should be required of the Justices of the United States Supreme Court. 
If Judge Parker, for political advantage, can flout two amendments to 
the Federal Constitution to pander to base race prejudice, we respect- 
fully submit that he is not of the caliber which loyal, intelligent 
Americans have the right to expect of Justices of the Nation's highest 
court. 

Attached is a memorandum of some of the important cases involv- 
ing the enforcement of the fourteenth and fifteenth amendments so 
far as the citizenship rights of negroes are concerned which have been 
presented to the United States Supreme Court within the past 15 
years. With the economic, educational, political, and other progress 
which the negro is making, and with the growing consciousness on the 
part of intelligent Americans as to the importance of the settlement 



76 CONFIRMATION OP JOHN J. PARKER 

of the race problem upon a basis of even-handed justice, it seems prob- 
able that even more cases of similar nature and equal importance will- 
be presented to the Supreme Court for decision in the near future. 
Entertaining such views as he expressed in 1920 when he sought elec- 
tion to the governorship of North Carolina, we are strongly convinced 
that it would be improper to place such a man as Judge Parker upon 
the bench of the United States Supreme Court. 

We, therefore, respectfully urge upon your subcommittee that it 
refuse a favorable report upon Judge Parker's nomination. We also 
respectfully urge, through your subcommittee, that the Judiciary 
Committee as a whole take the same action and that the Members of 
the United States Senate vote against the confirmation of Judge 
Parker. 

Senator Overman. Do you know Doctor Moulton, the head of the 
Tuskegee Institute, the most prominent colored man in the country? 

Mr. White. I know him very well. 

Senator Overman. Don't you think his sentiments are in line with 
those expressed by Judge Parker? 

Mr. White. In justice to Doctor Moulton, I don't think so. 

Senator Overman. Hasn't he so stated, time and again? 

Mr. White. No. Doctor Moulton's latest book, What the 
Negro Thinks — I don't quote him directly — but he said in that 
book that all thinking and intelligent negroes were asking for exactly 
the same rights under the Constitution as given to any other citizen 
of the country, and that the Negro would not be satisfied with any- 
thing less than that. 

Senator Overman. Do you know Dr. James E. Shepard? 

Mr. White. I know Dr. James E. Shepard, although not as well as 
I know Doctor Moulton. 

Senator Overman. I desire to put in the record his letter to me. 

(The letter referred to is as follows :) 

North Carolina College for Negroes, 

Durham, March 29, 1930. 
Senator Lee S. Overman, 

United States Senate, Washington, D. C. 
Dear Senator Overman: I desire to add my personal word of indorsement 
of Judge J. J. Parker. I think that no fairer or impartial lawyer could have been 
selected then Judge Parker to fill the exalted position as Justice of the Supreme 
Court. His attitude on all racial questions and all questions affecting the rights 
of humanity, he has tried to be fair. 

As a colored man and recognizing the fact that the Supreme Court of the 
United States should always be composed of men who represent the highest 
and best in thinking and in action, and that great questions affecting human 
relations and interracial relations will often come before them, if I did not 
believe Judge Parker was absolutely fair and impartial, I would not write this 
letter in his behalf. 

Judge Parker's selection honors the State and is a tribute to the worth and 
ability of a man who has worked himself up by his own efforts to be considered 
worthy to sit on the highest tribunal in American life. I hope that you are quite 
well. 

With sentiments of warm personal esteem and respect, I am, 
Very truly yours, 

J. E. Shepard, President. 

Senator Borah. Who is Doctor Shepard? 

Senator Overman. One of the leading colored men in North 
Carolina. 



CONFIRMATION OF JOHN J. PARKER 7? 

Mr. White. He is president of the North Carolina College for 
Negroes at Durham, N. C. 

Senator Borah. Who composes this association of which you are 
secretary? 

Mr. White. The National Association for the Advancement of 
Colored People composed of white and colored people who are 
interested in the securing and confirming to the negro rights under the 
Constitution. 

Senator Borah. Who are some of the prominent members? 

Mr. White. Its national president, recently deceased, and presi- 
dent since its inception, was Warfield Storey, eminent constitutional 
lawyer, and former president of the American Bar Association. 
Vice presidents, Rev. John Haynes Homes; Bishop John Hurst; 
Arthur B. Spingarn, of New York; and Oswald Garrison Villard. 
The treasurer is J. E. Spingarn. 

The board of directors are: Mary White Ovington, New York; 
Bishop John Hurst, Baltimore; Joseph Prince Loud, Boston; T. J. 
Nutter, Charleston, W. Va. ; Jane Addams, Chicago; Clarence Dar- 
row, Chicago; Hon. Harry E. Davis, Cleveland; Hon. Ira W. Hayne, 
Detroit; F. B. Ransom, Indianapolis; Dr. J. A. Somerville, Los 
Angeles; R. R. Church, Memphis; and George W. Crawford, New 
Haven. 

Senator Borah. That is enough. Did you have a meeting on this 
subject? 

Mr. White. Yes; our committee of administration. 

Senator Borah. Who is the committee? 

Mr. White. The committee is composed of J. E. Spingarn, the 
treasurer; Arthur E. Spingarn, chairman of the national legal com- 
mittee; Mary White Ovington, chairman of the board of directors; 
W. E. B. Du Bois, editor of the Crisis; Isador Martin, of Philadelphia; 
and myself. 

Senator Borah. Was it unanimous? 

Mr. White. It was unanimous. 

Senator Overman. Were they all present? 

Mr. White. They were present. 

Senator Overman. Did 3^011 have anything before you except this 
newspaper report? 

Mr. White. As is our custom, we keep closely in touch with all 
matters which may affect favorably or unfavorably the rights of 
negroes, and we made an investigation, made an inquiry, and we 
found a record of this statement as made by Judge Parker, and our 
feeling is based upon the well-accepted fact that judges, like all other 
human beings, even justices of the United States Supreme Court, 
have their opinions colored by their social, economic, political, and 
other views. That is our feeling. 

Senator Borah. Do you know anything in the career of Judge 
Parker to indicate that he is unfriendly to the negro? 

Mr. White. Nothing except this statement here. 

Senator Borah. Except that statement you have there? 

Mr. White. This one statement. 

Senator Borah. Do } r ou know of anything in his career that you 
have heard of, where he has been in any way unjust? 

107150—30 6 



78 CONFIRMATION OF JOHN J. PARKER 

Mr. White. Frankly, we never heard of him until he was nominated 
by President Hoover. 

Senator Borah. Has it been your business to look up his record 
since then? 

Mr. White. Yes, since then. 

Senator Borah. In looking it up, have you ascertained anything 
along that line? 

Mr. White. Nothing, except the statement upon which we base 
our objection. 

Senator Overman. Do you know, Mr. White, that most of the 
intelligent, educated, colored people vote in North Carolina? 

Mr. White. Within recent years, that has been the movement. 

Senator Overman. And they supported him loyally for governor. 
Do you know that? 

Mr. White. As to all of them voting, Senator Overman, I am 
prepared to quote figures on that, but we do know that, for example,. 
in certain cases, since the grandfather clause, the matter of exclusion 
from the so-called white Democratic primaries, and so forth, in the 
latter of which a case was carried from Texas to the Supreme Court 
of the United States — and then also there has been since then the 
question of the enabling act, giving the political parties the right to 
set up their own qualifications for membership, has permeated and 
has had a direct bearing upon the participation of negroes in the vote. 

Senator Overman. I was speaking of North Carolina, where Judge 
Parker ran for governor, and led his ticket and got 60,000 more votes 
than any man ever got who ran for governor. He was supported, 
loyally, was he not, but these colored men, who could vote and by 
some who could not? 

Mr. White. Some of them can vote in the larger cities of North 
Carolina. 

Senator Overman. The grandfather clause is out now. 

Mr. White. Since 1915; yes. 

Senator Overman. It no longer exists. 

Mr. White. But it is still not a safe matter for negroes, even in 
North Carolina, Senator Overman, to talk too much about voting in 
the rural districts. 

Senator Overman. Not if he can read and write. 

Mr. White. Even some of those who can read and write. 

Senator Overman. Can you cite any instance in North Carolina 
where any of them have been refused the right to vote, where they 
could read and write, and have the necessary qualifications a white 
man has? 

Mr. White. I haven't the figures with me, but I can search our 
records and supply you with the information that is there. 

Senator Overman. I don't think you can find much of that sort. 

Mr. White. I might say this: I don't want, even in the slightest 
degree, to be accused of being unfair, and I want to say that North 
Carolina has made more rapid progress toward fair treatment of the 
negro than any other Southern State. That is not flatten, Senator 
Overman. 

Senator Overman. I think that is true. What I meant to say is 
that Judge Parker, after that speech, ran ahead of his ticket and got 
60,000 more votes than any other candidate for governor ever 



CONFIRMATION OF JOHN J. PARKER 79 

received, and he was supported loyally by all the leading colored 
men of the State. He was bound to have been to get that vote. 

Is there anything else, Mr. White? 

Mr. White. There are one or two other members of our board 
of directors that I would like to mention. I notice that Senator 
Borah smiled when I mentioned the name of Clarence Darrow. 
There are one or two other names on there I would like 

Senator Borah. I didn't smile disapprovingly. 

Mr. White. No, I know. Mr. Darrow and I have talked many 
times about a case in which you and he were engaged many years 
ago. 

Senator Hebert. I suppose the question is whether you smiled 
approvingly, Senator. 

Mr. White. I just want to show you the type of men on our 
board. Senator Arthur Capper, of Kansas, is a member of our board; 
Lieut. Gov. Herbert H. Lehman, of New York; William English 
Walling, and others of that caliber also are members of the board 
of directors of the association. 

Senator Borah. May I be permitted to smile again? 

Mr. White. Yes; I have no objection whatever, Senator Borah. 

STATEMENT OF MERCER G. JOHNSON, DIRECTOR PEOPLES 
LEGISLATIVE SERVICE 

Senator Johnson. Inasmuch as I have sent to every member of 
the committee and all Senators a copy of this news release, which 
I would like to go into the record, it will be just as satisfactory to 
me if I may put it in the record without reading it. 

Senator Overman. Very well. 

(The statement in question is as follows :) 

People's Legislative Service, 

Washington, D. C. 

JUDGE PARKER NOT THE RIGHT MAN 

The nomination of Judge John J. Parker to fill the vacancy on the United 
States Supreme Court ought not to be confirmed. His presence on the Supreme 
Bench would not add to, but would detract from, the distinction of the great 
court. It would increase rather than lessen the grounds of just criticism of the 
court by that large body of Americans spiritually akin to Jefferson and Lincoln 
who believe that human rights are superior to property rights. 

Following hard upon the elevation of Chief Justice Hughes, the elevation of 
Judge Parker to the Supreme Bench might well be the straw that breaks the 
camel's back. From the liberal viewpoint, the Supreme Court is now loaded to 
the limit with judicial representatives of things rather than human flesh and 
blood. 

To compare small things with large, it would be as great a blunder to put 
Judge Parker on the Supreme Bench after his decision in the case of the United 
Mine Workers v. Red Jacket Consolidated Coal & Coke Co. et al. ( IS Fed. Rep. 2d 
series, p. 839) as it would have been to put Chief Justice Taney on thai bench 
after his decision in the Dred Scott case. In both instances tragic social blindness 
sealed the eves of the judges. 

According to Taney, the black man "had no rights which the white man was 
bound to respect." According to Parker, the American worker has no rights 
which the American employer is bound to respect. It is fair to say this in the 
black shadow of his Red Jacket decision which lifts the "yellow-dog" contract 
above the principles of the Declaration of Independence and the guaranties of 
human rights in the Constitution and laws passed under it to secure those rights. 

The Taney decision, elaborately argued and buttressed, so offended the 
conscience of his generation that it hastened the appeal to arms which washed it 



80 CONFIRMATION OF JOHN J. PARKER 

away in a torrent of blood. Rightly understood, rightly related to the human 
and political tragedy that has taken place in the coal fields of West Virginia 
during the past decade, the Parker decision is as offensive to the conscience of 
mankind as the Taney decision. Possibly more so, because less excusable in the 
light of this larger and fairer day. Once it comes to be generally understood, 
the aroused American conscience will make short shrift of this sociall}* shabby and 
moralty shoddy decision, the worse for its specious reasoning in support of 
intolerable industrial tyranny. 

At the moment Judge Parker is conspicuous among those who have solemnly 
blessed the "yellow-dog" contract. He may become known as the "'yellow- 
dog' judge," whether on or off the Supreme Bench. His "yellow-dog" decision 
is his only decision that has ever attracted attention (unless it be his decision to 
give the Union Carbide Co. a clean bill of health when it was accused of violating 
the Sherman Anti-Trust Act about the time he was going to the extreme of legal 
imagination to nail the United Mine Workers to the cross for violating that act) . 

What is a "yellow-dog" contract? It is a labor contract that almost literally 
reduces the worker who signs it to the status of the proverbial yellow dog. It 
reduces the free-born American worker to the condition of a Mexican peon. It 
throws him back toward chattel slavery. It robs him of human rights which it 
is a personal shame for him to part with, and a social crime for any American 
citizen to take away from another,, even with the mean consent of a Federal 
judge. Duress, in the shape of the power to starve the worker, is back of every 
"yellow-dog" contract. It spells the doom of organized labor if firmly established 
and made respectable. 

Upholding the sacredness of such contracts, the notorious Judge George 
McCIintick papered the mountains of southern West Virginia with injunctions of 
.the most drastic character ever penned enjoining the officers and members of the 
United Mine Workers and even its sympathizers from saying or doing anything 
whatsoever that might in any conceivable manner interfere with these contracts. 
"Reduced to their simple terms," declared a responsible New York newspaper 
reporter who visited the coal fields, "they enjoin the person to whom they were 
sent from doing everything but eat — if he could get the food — and sleep — if 
he could find a place to put his head." If Judge McCIintick did not fully ac- 
cept the view of the extremists among the nonunion coal operators that the 
then great and important labor organization of our American miners was in itself 
a criminal conspiracy he nevertheless lent his court to their deadly persecution 
of its members as if he did. "Abandon hope ye who enter here," might well have 
been written over the door of his court, so far as organized labor was concerned. 
He became the driver of a judicial car of Juggernaut which crushed civil liberty 
within the dead line drawn about the coal fields and along with it the homes and 
the hopes of thousands of Americans whose ancestors, under the inspiration of 
the Declaration of Independence, had fought for American freedom, Hand in 
glove with the lawless nonunion operators and their army of ruthless imported 
gunmen, he played an important part in building up an industrial autocracy in 
West Virginia which Senator William S. Kenyon denounced as "vicious and un- 
American" and "as contrary to the genius and spirit of our institutions." 

In his testimony before the Senate investigating committee over which Senator 
Kenyon presided, Samuel Untermyer expressed the belief that the United 
States Steel Co. was the dominant antiunion factor in West Virginia, that the 
bitter fight there was just another episode of its "crusade against organized 
labor," and said he regarded the Steel Co. "as the greatest enemy to industrial 
peace in the country." Men of the type of Judge McCIintick, armed with the 
power of a Federal court, deserve to be classed among the greatest enemies of 
industrial peace in the country. 

In his opinion in the Red Jacket case (which with the others came up for 
review from Judge McClintick's court), Judge Parker refers to Judge McCIintick 
as "the learned district judge." That and nothing more. After reading 5,000 
pages of the crushing tragedy that had transpired in West Virginia, there is 
nothing whatever to indicate that he was the least disturbed by it or by Judge 
McClintick's part in it. They saw eye to eye — through the same gimlet hole. 
Judge Parker galloped with him to the death of organized labor in the coal fields 
of southern West Virginia, without batting an eye or turning a hair. 

When the Mine Workers Union stood with its back to the wall in West Virginia, 
one of its valiant spokesmen used these words: "Regardless of terrorizing and 
abusing, we will stand upon our policy and in keeping with law and orderly 
procedure, we shall go on, knowing full well that in the end reason and right will 
prevail." 



CONFIRMATION OF JOHN" J. PARKER 81 

Is the right answer to this high hope the elevation of Judge Parker to the 
Supreme Court? 

Mr. Johnson. Then, in addition to that, I want to do what I can 
to wipe out the somewhat technical character the discussion took on 
after Mr. Townsend began to testify. 

The thing that makes me opposed to his nomination is his apparent 
inability to size up a human situation into the midst of which he is 
thrown. When he decided the Red Jacket case there was available 
two volumes of testimony taken by the Senate Committee on Edu- 
cation and Labor, over which Senator Kenyon presided; and he had 
immediately in his hand 5,000 pages, a part of which cited conditions 
in West Virginia; which one, who like myself, went to West Virginia 
in 1922 after nearly two years' service in the battle fields of France, 
caused this veteran to say, "Conditions in West "Virginia seem to be 
more hellish than those I left behind in France." 

I can not give his name, but that is a part of his testimony before 
the Kenyon committee. 

Senator Borah. Judge Parker couldn't have taken that hearing 
into consideration in the trial of a cause, could he? 

Mr. Johnson. Senator Borah, I notice that you, when this matter 
came up, felt that the "yellow-dog" contract was vitally involved 
and that you could not get away from it, nor could your mind keep 
from jumping to the conclusion that the "yellow-dog" contract was 
absolutely against sound public policy. 

If Judge Parker is humanely fitted to go on the Supreme Court 
Bench, why didn't that question come to him? Why didn't he him- 
self face the desolation that was being wrought in West Virginia with 
the "yellow-dog" contract as the point of departure. 

In reading his decision in that case, the thing that appalls me is the 
blindness of the judge in the face of the human conditions which can 
not be left out of the atmosphere in which cases are decided in any 
court, if they are decided justly, and especially those decided in the 
Supreme Court. 

I want to say that personally I feel about the "yellow-dog" con- 
tract that it is, as they said about the Canadian border line discus- 
sion — they didn't say 50-50, but I will say 50-50. It is 50-50 or 
fight. 

If the Supreme Court ever absolutely decides and gets away with 
the decision that what labor justly calls the "yellow-dog" contract 
is the law of the land, and that decision is not overthrown by statute, 
so it will stay overthrown, we have a condition confronting us just as 
we did after the Dred Scott decision. 

Why didn't Judge Parker, when he faced that contract, which 
forbid absolutely the American laborer to join a union, why couldn't 
he say, just as the man in the street must be able to say that the thing 
was a complete denial of those human rights possessed by every 
individual. Suppose the "red-dog" contract had said 

Senator Hebert. It was the "yellow dog" at first. 

Mr. Johnson. I go back to the "yellow dog." I apologize to the 
"red dog" profoundly. 

Suppose the "yellow-dog" contract forbade a worker to join the 
Episcopal Church, of which Judge Parker is a member, or the 
Methodist Church, or the Roman Catholic, or any church? 



82 CONFIRMATION OF JOHN J. PARKER 

It looks to me like a man would say, "You can't get away with 
that." 

Suppose it had forbidden a man to vote. In order not to be 
starved to death in West Virginia during this time, suppose that 
was the alternative, that. the man should sign away his right to vote. 
Everybody would say that that was against public policy. 

Suppose it forbid a man to marry, and there possibly were men 
who signed the "yellow-dog" contract who would have signed them 
if the "yellow-dog" contract had forbidden them to marry. 

Senator Overman. The committee is inclined to believe what you 
say, so if it believes this is an unconscionable contract, why argue it? 

Mr. Johnson. Because of the Eygptian darkness of the mind of 
Judge Parker, when he confronted those conditions in West Virginia. 

Senator Overman. He was not a resident of West Virginia. He 
was a judge that came from another State. What did he know 
about the conditions in the coal mines? 

Mr. Johnson. If he was as ignorant as that, sir, in 1922, he was 
incapable of ever learning enough to sit on the Supreme Court Bench, 
because it was common knowledge throughout the United States. 
Paper after paper sent their best men. John W. Owens, now editor 
of the Baltimore Sun, was sent by the Sun into West Virginia, and 
he came back, giving a fair account, but he said in order to give a fair 
account of this situation, "it is perfectly plain to fair eyes, going in 
from the outside, that the coal operators from West Virginia are the 
guiltiest in this civil Avar, which exists there, since they were the 
ones who by gross illegality started the conditions which afterwards 
arose there." 

Senator Borah. Mr. Johnson, I think so far as the contract is 
concerned, perhaps there won't be very much discussion about that. 
But, have you gone over the record in this case, from the beginning — 
that is, the record in the case, through the volumes of evidence and 
through the briefs in the case? 

Mr. Johnson. Not in this particular case. 

Senator Borah. I was going to ask you a question, but if you have 
not gone over that, I will refrain. 

Senator Overman. Who did you say you represented, Mr. John- 
son? You are the head of some organization? 

Mr. Johnson. Yes. I use that rather as descriptive. I will tell 
you all you want to know about the People's Legislative Service, but 
inasmuch as we do not formally pass any resolutions at all, but so 
far as the attitude which I, as its director, take, it depends on whether 
or not, on the whole, the director is representing good common sense, 
from the standpoint of the liberal, progressive movement 

Senator Overman. Have you an organization back of you? 

Mr. Johnson. Yes, sir. In coming here I am coining here quite 
as legitimately as I do in all the work which I do and which has been 
done in the name of the People's Legislative Service during the 
past ycer. 

Senate Oeverman. That is not the question I asked you. Who 
is back of you? Some association must be back of you, if you are 
head of the legislative service. 

Mr. Johnson. Do you want to know what the set-up is of the 
organization at this moment? 



CONFIRMATION OF JOHN" J. PARKER 83 

Senator Overman. I would like to know who you represent. 

Mr. Johnson. Well, I have the right to say I represent the People's 
Legislative Service. That is an organization composed of people 
throughout the United States who, on the whole, have gone along 
with the elder Senator Robert La Follette, who inspired the organi- 
zation about 1921. 

Senator Overman. It is not a political organization? 

Mr. Johnson. No. Well, I wouldn't want to say it was non- 
political, because we get out voting records, in which we attempt to 
see whether or not we think a man is sufficiently liberal enough and 
progressive enough to be elected to the United States Senate" or the 
House of Representatives. 

Senator Overman. Are you paid any salary? 

Mr. Johnson. Am I paid a salary? 

Senator Overman. Yes. 

Mr. Johnson. Yes, sir. 

Senator Overman. Who pays you, and what salary do you get? 

Mr. Johnson. I get $5,000 a year, and it is paid by the People's 
Legislative Service. 

Senator Overman. You can not tell us who composes that Legis- 
lative Service? You can not tell us some of the names? 

Mr. Johnson. Well, I can tell you 

Senator Overman. You speak of all the people of the United 
States. We want to know w r ho composes it. 

Mr. Johnson. I want to make it about as clear as I can, fairly, 
that I am willing, so far as this hearing is concerned, to be put down 
merely as Mercer G. Johnson, a citizen of Washington, D. C, who 
spent some time in the coal fields of West Virginia when this matter 
was at its height, who was a member of the Baltimore committee for 
the relief of West Virginia miners, which raised between $24,000 and 
$25,000 to relieve the intolerable conditions which had been brought 
on in West Virginia through the tyranny of Judge McClintic in help- 
ing the coal operators over and over again in acting illegally, and who 
was so much interested 

Senator Overman. We are going to adjourn very soon, now. 

Mr. Johnson. I am willing to stop, sir, whenever you want me to, 
but I would lkie to just finish this — who w r as enough interested, who 
had enough intelligent interest in the industrial questions, especially 
as it affects organized labor, and more particularly the miner, to 
organize the public committee on coal, in New York, which attempted 
to serve as a sounding board for the real facts of the case in 1922, and 
who was well enough known to have District No. 29 of the United 
Mine Workers invite him to West Virginia in 1922 to help them sus- 
tain the morale of the striking miners. 

Senator Overman. Does anybody else desire to be heard this 
morning? We w T ant everybody w T ho desires to be heard, to be heard. 
We do not w T ant to take advantage of anybody. 

Apparently there is no one to be heard and we will adjourn now 
subject to the call of the chairman. 

(Whereupon, at 1.15 o'clock p. m., the committee adjourned 
subject to the call of the chairman.) 

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